Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, or liquidate or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtedness.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e9.4 (other than pursuant to clause (b) hereofof the definition of the term “Collateral Sale”) unless New Hillhaven is or Section 9.5 (other than Section 9.5(o)), the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its assets, except that:
(a) the Borrower may merge, consolidate or amalgamate with any substantial portion Person (including any Subsidiary), provided that (i) the Borrower shall be the surviving, continuing or resulting entity or, if the foregoing is not the case, the surviving, continuing, or resulting entity shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto (iii) no Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, and (iv) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation (or unless the Successor Borrower is the Borrower) shall have confirmed in an officer’s certificate delivered to the Term Agent in form and substance acceptable to the Term Agent that its propertiesGuarantee shall apply to the Successor Borrower’s obligations under this Agreement (and, assets during a Collateral Requirement Period, shall have confirmed that its obligations under the Security Documents shall apply to the Successor Borrower’s obligations under this Agreement), (B) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (C) an opinion of counsel and business an officer’s certificate of the Borrower shall be required to be provided to the Term Agent to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other PersonCredit Document and (D) such merger, except amalgamation or consolidation shall not occur during an Interim Covenant Period; provided, further, that New Hillhaven if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;
(b) any Guarantor may merge, amalgamate or consolidate with (i) any Credit Party (provided that if the Borrower is involved in the case of any such merger, amalgamation or consolidation, the provisions of clause (a) above shall govern) or (ii) any other Person (including any other Subsidiary of the Borrower); provided that (A) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (1) a Restricted Subsidiary shall be the continuing or surviving Person or (2) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (B) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee and any applicable Mortgage and/or other Security Documents, each in form and substance as is reasonably necessary for the surviving Person to become a Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Term Loan Secured Parties, (C) no Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation and (D) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, such merger, amalgamation or consolidation shall not occur during an Interim Covenant Period;
(c) any Restricted Subsidiary that is not a Guarantor may leasemerge, sell amalgamate or otherwise dispose consolidate with, or Dispose of all or any part substantially all of its propertyassets to, the Borrower or any other Restricted Subsidiary (provided that if the Borrower is involved in the case of any such merger, amalgamation or consolidation, the provisions of clause (a) above shall govern);
(d) any Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, any assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 9.4 (includingother than pursuant to clause (b) of the definition of the term “Collateral Sale”) or Section 9.5 (other than Section 9.5(o)), without limitationor in the case of any such business, Stockdiscontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution; and
(e) to any Person, including, without limitation, New Hillhaven the extent that no Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesDisposition, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 9.4 (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any other than pursuant to clause (b) of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion definition of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtednessterm “Collateral Sale”).
Appears in 1 contract
Limitation on Fundamental Changes. Merge or (a) The Parent Borrower will not, and will not permit any other Borrower to, consolidate with or merge or amalgamate with or into, or convey, transfer or lease all or substantially all its assets to, any --------------------------------- other Person, unless:
(i) in the case of the Parent Borrower, the resulting, surviving or transferee Person (except as the “Successor Company”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Parent Borrower) will expressly permitted assume all the obligations of the Parent Borrower under this Agreement and the Loan Documents to which it is a party by Section 4(eexecuting and delivering to the Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(ii) hereof) unless New Hillhaven is the surviving corporation and, immediately after giving effect to such merger transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or consolidationany Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default has will have occurred and be continuing;
(iii) the Payment Condition is continuingsatisfied;
(iv) each applicable Borrower or Subsidiary Guarantor (other than (x) the Parent Borrower, or permit (y) any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, or liquidate or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of Borrower that will be released from its properties, assets and business to any other Person, except that New Hillhaven obligations hereunder or any Subsidiary may leaseGuarantor that will be released from its obligations under its Subsidiary Guarantee, sell in each case in connection with such transaction and (z) any party to any such consolidation, amalgamation or otherwise dispose of all merger) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its obligations hereunder or its Subsidiary Guarantee under the Guarantee and Collateral Agreement, as applicable (other than any Borrower that will be released from its obligation hereunder or any part of its propertySubsidiary Guarantee that will be discharged or terminated, assets or business in each case in connection with such transaction);
(including, without limitation, Stockv) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal the extent required to be Collateral pursuant to the fair market value terms of such propertiesthe Security Documents and this Agreement, assets or business (as determined the Collateral owned by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of Successor Company will (x) continue to constitute Collateral under the foregoing applicable Security Documents and (y) be subject to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME the ABL Collateral Agent;
(vi) the Parent Borrower will have delivered to the Administrative Agent a certificate signed by a Responsible Officer and a legal opinion each to the effect that such consolidation, merger, amalgamation or transfer complies with the provisions described in this paragraph, provided that in giving such opinion such counsel may rely on such certificate of such Responsible Officer as to compliance with the foregoing clauses (ii) and (iii) of this subsection 8.3(a) and as to any matters of fact; and
(vii) in the case of the Canadian Borrower, the Successor Company is organized under the laws of Canada or any province or territory thereof.
(b) The Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Parent Borrower or the applicable Borrower, respectively, under the Loan Documents, and thereafter the predecessor Parent Borrower or the applicable predecessor Borrower, respectively, shall be relieved of all obligations and covenants under this Agreement, except that the predecessor Parent Borrower or the applicable predecessor Borrower, respectively, in the case of a lease of all or substantially all its assets will not be released from the obligation to pay the principal of and interest on the Loans and Reimbursement Obligations owing in connection with Letters of Credit.
(c) Clauses (ii) and (iii) of subsection 8.3(a) will not apply to any transaction in which the Parent Borrower or any other Borrower consolidates, amalgamates or merges with or into or transfers all or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of NME, reincorporating or by reorganizing the Parent Borrower or such other Borrower in another jurisdiction or changing its legal structure to a Lien securing Indebtedness guaranteed corporation or in effect guaranteed by NME other entity or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or (y) a Consolidated Subsidiary, unless the cash portion Subsidiary Guarantor so long as all assets of the proceeds from Parent Borrower or such sale are sufficientother Borrower, respectively, and the Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such Subsidiary Guarantor) are applied directlyowned by such Subsidiary Guarantor and its Restricted Subsidiaries that are Subsidiary Guarantors immediately after the consummation thereof. Subsection 8.3(a) will not apply to (1) any transaction in which any Restricted Subsidiary consolidates or amalgamates with, merges into or transfers all or part of its assets to repay such Indebtednessthe Parent Borrower or any other Borrower or (2) the Transactions.
Appears in 1 contract
Samples: Abl Credit Agreement (Veritiv Corp)
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its business units, assets or other properties, except that:
(a) any substantial portion Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation with or into the Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the Borrower) shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, and (iv) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) the Successor Borrower shall be in Pro Forma Compliance after giving effect to such merger, amalgamation or consolidation, (B) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (C) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (F) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Credit Document; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement and (G) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5;
(b) any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee, each applicable Security Agreement and any applicable Mortgage, and a joinder to the Intercompany Note, each in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Guarantor, and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note, (iii) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation and (iv) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, (A) the Borrower shall be in Pro Forma Compliance after giving effect to such merger, amalgamation or consolidation, (B) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Agreements and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5;
(c) any Restricted Subsidiary that is not a Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its propertiesassets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor, (ii) merge, amalgamate or consolidate with or into any other Subsidiary which is not a Guarantor or Dispose of any or all of its assets and business (upon voluntary liquidation or otherwise) to any other PersonSubsidiary that is not a Guarantor; provided that if such Subsidiary Guarantor is not the surviving entity, except that New Hillhaven such merger, amalgamation or consolidation shall be deemed to be, and any such Disposition shall be, an “Investment” and subject to the limitations set forth in Section 10.5 and (iii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor;
(e) any Restricted Subsidiary may leaseliquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, sell or otherwise dispose of all or any part of its property, assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution;
(including, without limitation, Stockf) the Borrower and its Restricted Subsidiaries may consummate the Transactions; and
(g) to any Personthe extent that no Borrowing Base Deficiency, including, without limitation, New Hillhaven Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesDisposition, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business (as determined by Disposition, the Board purpose of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing which is to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary effect a Disposition permitted pursuant to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 10.4.
Appears in 1 contract
Limitation on Fundamental Changes. Merge The Borrower shall not, and shall --------------------------------- not permit any of its Subsidiaries to, enter into any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of create or lease acquire any Subsidiary or Affiliate (unless the documents required by Section 5.11 are executed and delivered, and provided that any such acquisition shall be subject to Section 6.7), make any Station subject to any local marketing or similar agreement (except for those agreements set forth on Schedule 6.4) or convey, sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell assign, transfer or otherwise dispose of all or any part substantially all of its property, assets business or business assets, except that, so long as no Default has occurred and is continuing or would result therefrom, (includingi) the Borrower may consummate the Acquisitions permitted by Section 6.7, without limitation(ii) any Subsidiary may merge with the Borrower or another wholly-owned Subsidiary (provided that (x) if such merger is with the -------- ---- Borrower, Stockthe Borrower is the survivor thereof and (y) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration the Agent receives at least equal twenty Business Days' prior written notice of any such merger and the Borrower or such Subsidiaries execute and deliver to the fair market value Agent such documents as the Agent shall reasonably request in connection therewith, including but not limited to UCC-1 Financing Statements) and (iii) any Sunset Subsidiary may dissolve (provided that, (A) prior to such dissolution, the Agent receives (i) -------- ---- if such Subsidiary owns any assets, appropriate assignment documents indicating that all such assets and obligations (including such Subsidiary's obligations under the Loan Documents to which it is a party) have been transferred to the Borrower or another Subsidiary and (ii) a certificate from a Responsible Officer of the Borrower to the effect that such Sunset Subsidiary has no (or, upon execution of such propertiesassignment documents, will have no) assets and (B) within 60 days after such dissolution, copies of appropriate documents dissolving such Sunset Subsidiary, along with evidence of the filing thereof with the relevant Governmental Authority). Notwithstanding the foregoing, the License Subsidiaries shall not merge, consolidate, amalgamate or business liquidate, wind up or dissolve or convey, sell, lease, assign (as determined by except pursuant to the Board of Directors of New Hillhaven in good faithLoan Documents), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell transfer or otherwise dispose of or permit any Subsidiary to leaseof, sell or otherwise dispose of all or any part substantially all of its property, assets their respective property or business (including, without limitation, Stock) encumbered by a Lien in favor assets; provided that nothing herein shall be deemed to restrict the transfer of NME or an Affiliate of NMEthe -------- ---- KLNZ License Subsidiary, or by a Lien securing Indebtedness guaranteed or the Media Licenses and other assets it holds relating to KLNZ, in effect guaranteed by NME or an Affiliate of NME, to connection with any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion resolution of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessHBS Dispute.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4, 10.5 or 10.6, the surviving corporation andBorrower will not and will not permit any of the Restricted Subsidiaries to, after giving effect to such merger consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution) (including, in each case, pursuant to a Delaware LLC Division), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose Dispose of all or any part substantially all of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such and other properties, assets or business except that:
(as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding a) any Subsidiary of the foregoing to Borrower or any other Person may be merged, amalgamated or consolidated with or into the contrary, in no event Borrower or the Borrower may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose Dispose of all or any part substantially all of its propertyassets and other properties; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation where the Borrower is not the continuing or surviving Person, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the Borrower) or in connection with a Disposition of all or substantially all of the Borrower’s assets, the transferee of such assets or business properties, shall, in each case, be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (includingthe Borrower or such Person, without limitationas the case may be, Stockbeing herein referred to as the “Successor Borrower”), (ii) encumbered the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (iii) if such merger, amalgamation, consolidation or Disposition involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation, consolidation, or Disposition, is not a Restricted Subsidiary of the Borrower (A) subject to Section 1.11, no Event of Default under Section 11.1 or Section 11.5 has occurred and is continuing after giving effect to such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition, (B) each Guarantor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have confirmed by a Lien in favor of NME supplement to the Guarantee that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (C) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation, consolidation or an Affiliate of NMEDisposition or unless the Successor Borrower is the Borrower, or shall have by a Lien securing Indebtedness guaranteed supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection of the Liens on the Collateral under the Security Documents, (F) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to the Administrative Agent an opinion of counsel to the effect that such merger, amalgamation, consolidation or Disposition does not breach or result in effect guaranteed a default under this Agreement or any other Credit Document and (G) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 or Section 10.6; provided, further, that, if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement (provided, further, that, in the event of a Disposition of all or substantially all of the Borrower’s assets or property to a Successor Borrower (which is not the Borrower) as set forth above and notwithstanding anything to the contrary in Section 13.6(a), if the original Borrower retains any assets or property other than immaterial assets or property after such Disposition, such original Borrower shall remain obligated as a co-Borrower along with the Successor Borrower hereunder);
(b) any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into any one or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its assets and other properties; provided that, (i) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or the transferee of such assets or (B) the Borrower shall take all steps necessary to cause the Person formed by NME or an Affiliate surviving any such merger, amalgamation, consolidation or the transferee of NME, such assets and properties (if other than a Restricted Subsidiary) to any Person, including, without limitation, New Hillhaven or become a Consolidated Restricted Subsidiary, unless (ii) in the cash portion case of any merger, amalgamation, consolidation or Disposition involving one or more Subsidiary Guarantors, if the surviving Person formed by or surviving such merger, amalgamation or consolidation or the transferee of such assets and properties is a Non-Credit Party, then any Indebtedness of any Subsidiary Guarantor assumed by such surviving Person or the transferee of such assets and properties shall be deemed an Incurrence of Indebtedness upon completion of such transaction and such transaction shall be permitted only if such Incurrence is permitted under Section 10.1 of this Agreement (without giving effect to Section 10.1(k)) and (iii) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the proceeds from such sale are sufficientBorrower, and are applied directly, (A) subject to repay such Indebtedness.-162-
Appears in 1 contract
Limitation on Fundamental Changes. Merge The Borrowers will not, and will not permit any of their Restricted Subsidiaries to, enter into any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion of substantially all its business units, assets or other properties, assets except that:
(a) so long as no Event of Default has occurred and business to is continuing or would result therefrom, any Subsidiary of any Borrower or any other Person may be merged, amalgamated or consolidated with or into any Borrower; provided that (A) a Borrower shall be the continuing or surviving corporation or (B) if the Person formed by or surviving any such merger, amalgamation or consolidation is not one of the Borrowers (such other Person, except that New Hillhaven the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto or in a form otherwise reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation, shall have, by a supplement to the Guarantee, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation, shall have, by a supplement to any applicable Security Document, affirmed that its obligations thereunder shall apply to its Guarantee as reaffirmed pursuant to clause (3) and (5) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger, amalgamation, or consolidation and such supplements preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger, amalgamation, or consolidation does not violate this Agreement or any other Credit Document and that the provisions set forth in the preceding clauses (3) and (4) preserve the enforceability of the Guarantee and the perfection of the Liens created under the Security Documents (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement);
(b) so long as no Event of Default has occurred and is continuing or would result therefrom, any Subsidiary of any Borrower or any other Person (in each case, other than the Borrowers) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of any Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) such Borrower shall cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation and if the surviving Person is not already a Guarantor, such Person shall execute a supplement to the Guarantee and the relevant Security Documents in form and substance reasonably satisfactory to the Administrative Agent in order to become a Guarantor and pledgor, mortgagor and grantor, as applicable, thereunder for the benefit of the Secured Parties, (iii) in the case of any merger, amalgamation or consolidation involving one or more Borrowers, a Borrower shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation and if the surviving Person is not already a Borrower, such Person shall execute a supplement to this Agreement, the Guarantee and the relevant Security Documents in form and substance reasonably satisfactory to the Administrative Agent in order to become a Borrower and pledgor, mortgagor and grantor, as applicable, thereunder for the benefit of the Secured Parties and (iv) such Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any such supplements to any Security Document preserve the enforceability of the Guarantees and the perfection and priority of the Liens under the Security Documents;
(c) the Transactions may be consummated;
(i) any Restricted Subsidiary that is not a Credit Party may convey, sell, lease, sell assign, transfer or otherwise dispose of any or all or any part of its property, assets (upon voluntary liquidation or business (including, without limitation, Stockdissolution or otherwise) to any PersonBorrower or any other Restricted Subsidiary or (ii) any Credit Party (other than a Borrower) may convey, includingsell, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell assign, transfer or otherwise dispose of any or permit all of its assets (upon voluntary liquidation or dissolution or otherwise) to any other Credit Party;
(e) any Subsidiary to may convey, sell, lease, sell assign, transfer or otherwise dispose of any or all or any part of its propertyassets (upon voluntary liquidation or dissolution or otherwise) to a Credit Party; provided that the consideration for any such disposition by any Person other than a Guarantor shall not exceed the fair value of such assets;
(f) any Restricted Subsidiary may liquidate or dissolve if a Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers and is not materially disadvantageous to the interests of the Lenders;
(g) the Borrowers and the Restricted Subsidiaries may consummate a merger, assets dissolution, liquidation, consolidation, investment or business conveyance, sale, lease, assignment or disposition, the purpose of which is to effect an Asset Sale (includingwhich for purposes of this Section 10.3(g), without limitation, Stockwill include any disposition below the dollar threshold set forth in clause (d) encumbered of the definition of “Asset Sale”) permitted by a Lien in favor of NME Section 10.4 or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME investment permitted pursuant to Section 10.5 or an Affiliate of NME, to investment that constitutes a Permitted Investment; and (h) undertaking or consummating any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessIPO Reorganization Transactions.
Appears in 1 contract
Samples: Abl Credit Agreement (Bountiful Co)
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4, 10.5 or 10.6, the surviving corporation andBorrower will not and will not permit any of the Restricted Subsidiaries to, after giving effect to such merger consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose Dispose of all or lease substantially all of its business units, assets or sellother properties, or permit except that:
(a) any Subsidiary to dispose of the Borrower or lease any other Person (other than Holdings) may be merged, amalgamated or sell, consolidated with or into the Borrower or the Borrower may Dispose of all or any substantial portion substantially all of its propertiesbusiness units, assets and business to any other properties; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation where the Borrower is not the continuing or surviving Person, except that New Hillhaven the Person formed by or surviving any Subsidiary may leasesuch merger, sell amalgamation or otherwise dispose consolidation (if other than the Borrower) or in connection with a Disposition of all or substantially all of the Borrower’s assets, the transferee of such assets or properties, shall, in each case, be an entity organized or existing under the laws of the United States, any part state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (iii) if such merger, amalgamation, consolidation or Disposition involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation, consolidation, or Disposition, is not a Restricted Subsidiary of the Borrower (A) subject to Section 1.11, no Event of Default under Section 11.1 or Section 11.5 has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition, (B) each Guarantor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have confirmed by a supplement to the Guarantee and by a supplement to this Agreement that its Guarantee and Co-Obligor obligations shall apply to the Successor Borrower’s obligations under this Agreement, (C) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection of the Liens on the Collateral under the Security Documents, (F) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to the Administrative Agent an opinion of counsel to the effect that such merger, amalgamation, consolidation or Disposition does not breach or result in a default under this Agreement or any other Credit Document and (G) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 or Section 10.6; provided, further, that, if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement (provided, further, that, in the event of a Disposition of all or substantially all of the Borrower’s assets or property to a Successor Borrower (which is not the Borrower) as set forth above and notwithstanding anything to the contrary in Section 13.6(a), if the original Borrower retains any assets or property other than immaterial assets or property after such Disposition, such original Borrower shall remain obligated as a co-Borrower along with the Successor Borrower hereunder);
(b) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into any one or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its propertybusiness units, assets and other properties; provided that, (i) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or the transferee of such assets or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation, consolidation or the transferee of such assets and properties (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Subsidiary Guarantors, if the surviving Person formed by or surviving such merger, amalgamation or consolidation or the transferee of such assets and properties is a Credit Party, then any Indebtedness of any Subsidiary Guarantor assumed by such surviving Person or the transferee of such assets and properties shall be deemed an Incurrence of Indebtedness upon completion of such transaction and such transaction shall be permitted only if such Incurrence is permitted under Section 10.1 of this Agreement (without giving effect to Section 10.1(k)) and (iii) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower, (A) subject to Section 1.11, no Event of Default under Section 11.1 or Section 11.5 has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition, (B) the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer stating that such merger, amalgamation, consolidation or Disposition and such supplements to any Credit Document preserve the enforceability of the Guarantees and the perfection and priority of the Liens under the Security Documents and (C) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.4, Section 10.5 or Section 10.6;
(c) any Restricted Subsidiary may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Restricted Subsidiary of the Borrower;
(d) the Transactions (including the Merger and the Internal Restructuring) may be consummated; provided that, after giving effect to the Internal Restructuring, MPH Acquisition Holdings LLC expressly assumes all of the obligations of MPH Acquisition Corp 1 (as Successor Borrower after the Merger and Internal Restructuring);
(e) any Restricted Subsidiary may liquidate or dissolve or change its legal form if (x) the Borrower determines in good faith that such liquidation or dissolution or change of legal form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (y) any assets or business not otherwise Disposed of or transferred in accordance with Section 10.4, Section 10.5 or Section 10.6, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Borrower or another Restricted Subsidiary after giving effect to such liquidation or dissolution or change of legal form; and
(includingf) the Borrower and the Restricted Subsidiaries may consummate a merger, without limitationdissolution, Stockliquidation, consolidation, amalgamation or Disposition, the purpose of which is to (i) effect a Disposition permitted pursuant to Section 10.4 (other than 10.4(h)), (ii) reorganize or reincorporate any Personsuch Person in the United States, includingany state thereof, without limitation, New Hillhaven the District of Columbia or any territory thereof or (iii) convert into a Consolidated Subsidiary for consideration at least equal to Person organized or existing under the fair market value laws of the jurisdiction of organization of such propertiesPerson or another jurisdiction of the United States, assets any state thereof, the District of Columbia or business (as determined by the Board of Directors of New Hillhaven in good faith)any territory thereof; provided that, provided -------- that notwithstanding with respect to any of the foregoing to actions described in clauses (ii) and (iii) above, the contrary, in no event may New Hillhaven lease, sell Borrower or otherwise dispose of or permit any applicable Restricted Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion shall have complied with Section 4.2 of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSecurity Agreement.
Appears in 1 contract
Samples: Incremental Revolving Credit Commitment Increase Agreement (MultiPlan Corp)
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4, 10.5 or 10.6, the surviving corporation andBorrower will not and will not permit any of the Restricted Subsidiaries to, after giving effect to such merger consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose Dispose of all or lease substantially all of its business units, assets or sellother properties, or permit except that:
(a) any Subsidiary to dispose of the Borrower or lease any other Person (other than Holdings) may be merged, amalgamated or sell, consolidated with or into the Borrower or the Borrower may Dispose of all or any substantial portion substantially all of its propertiesbusiness units, assets and business to any other properties; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation where the Borrower is not the continuing or surviving Person, except that New Hillhaven the Person formed by or surviving any Subsidiary may leasesuch merger, sell amalgamation or otherwise dispose consolidation (if other than the Borrower) or in connection with a Disposition of all or substantially all of the Borrower’s assets, the transferee of such assets or properties, shall, in each case, be an entity organized or existing under the laws of the United States, any part state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (iii) if such merger, amalgamation, consolidation or Disposition involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation, consolidation, or Disposition, is not a Restricted Subsidiary of the Borrower (A) subject to Section 1.11, no Event of Default under Section 11.1 or Section 11.5 has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition, (B) each Guarantor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have confirmed by a supplement to the Guarantee and by a supplement to this Agreement that its Guarantee and Co-Obligor obligations shall apply to the Successor Borrower’s obligations under this Agreement, (C) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection of the Liens on the Collateral under the Security Documents, (F) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to the Administrative Agent an opinion of counsel to the effect that such merger, amalgamation, consolidation or Disposition does not breach or result in a default under this Agreement or any other Credit Document and (G) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 or Section 10.6; provided, further, that, if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement (provided, further, that, in the event of a Disposition of all or substantially all of the Borrower’s assets or property to a Successor Borrower (which is not the Borrower) as set forth above and notwithstanding anything to the contrary in Section 13.6(a), if the original Borrower retains any assets or property other than immaterial assets or property after such Disposition, such original Borrower shall remain obligated as a co-Borrower along with the Successor Borrower hereunder);
(b) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into any one or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its propertybusiness units, assets and other properties; provided that, (i) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or the transferee of such assets or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation, consolidation or the transferee of such assets and properties (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Subsidiary Guarantors, if the surviving Person formed by or surviving such merger, amalgamation or consolidation or the transferee of such assets and properties is a Credit Party, then any Indebtedness of any Subsidiary Guarantor assumed by such surviving Person or the transferee of such assets and properties shall be deemed an Incurrence of Indebtedness upon completion of such transaction and such transaction shall be permitted only if such Incurrence is permitted under Section 10.1 of this Agreement (without giving effect to Section 10.1(k)) and (iii) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower, (A) subject to Section 1.11, no Event of Default under Section 11.1 or Section 11.5 has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition, (B) the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer stating that such merger, amalgamation,consolidation or Disposition and such supplements to any Credit Document preserve the enforceability of the Guarantees and the perfection and priority of the Liens under the Security Documents and (C) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.4, Section 10.5 or Section 10.6;
(c) any Restricted Subsidiary may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Restricted Subsidiary of the Borrower;
(d) the Transactions (including the Merger and the Internal Restructuring) may be consummated; provided that, after giving effect to the Internal Restructuring, MPH Acquisition Holdings LLC expressly assumes all of the obligations of MPH Acquisition Corp 1 (as Successor Borrower after the Merger and Internal Restructuring);
(e) any Restricted Subsidiary may liquidate or dissolve or change its legal form if (x) the Borrower determines in good faith that such liquidation or dissolution or change of legal form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (y) any assets or business not otherwise Disposed of or transferred in accordance with Section 10.4, Section 10.5 or Section 10.6, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Borrower or another Restricted Subsidiary after giving effect to such liquidation or dissolution or change of legal form; and
(includingf) the Borrower and the Restricted Subsidiaries may consummate a merger, without limitationdissolution, Stockliquidation, consolidation, amalgamation or Disposition, the purpose of which is to (i) effect a Disposition permitted pursuant to Section 10.4 (other than 10.4(h)), (ii) reorganize or reincorporate any Personsuch Person in the United States, includingany state thereof, without limitation, New Hillhaven the District of Columbia or any territory thereof or (iii) convert into a Consolidated Subsidiary for consideration at least equal to Person organized or existing under the fair market value laws of the jurisdiction of organization of such propertiesPerson or another jurisdiction of the United States, assets any state thereof, the District of Columbia or business (as determined by the Board of Directors of New Hillhaven in good faith)any territory thereof; provided that, provided -------- that notwithstanding with respect to any of the foregoing to actions described in clauses (ii) and (iii) above, the contrary, in no event may New Hillhaven lease, sell Borrower or otherwise dispose of or permit any applicable Restricted Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion shall have complied with Section 4.2 of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSecurity Agreement.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or (a) The Borrower will not consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, any --------------------------------- other Person, unless:
(i) the resulting, surviving or transferee Person (except as the “Successor Borrower”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Borrower (if not the Borrower) will expressly permitted assume all the obligations of the Borrower under this Agreement and the Loan Documents to which it is a party by Section 4(eexecuting and delivering to the Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(ii) hereof) unless New Hillhaven is the surviving corporation and, immediately after giving effect to such merger transaction (and treating any Indebtedness that becomes an obligation of the Successor Borrower or consolidationany Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Borrower or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default has will have occurred and is be continuing, or permit any Subsidiary to merge or consolidate with any other Person ;
(except as expressly permitted by Section 4(eiii) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) immediately after giving effect to such transaction, either (A) the Borrower (or, if applicable, the Successor Borrower with respect thereto) could Incur at least $1.00 of additional Indebtedness pursuant to Subsection 8.1(a) or (B) the Consolidated Coverage Ratio of the Borrower (or, if applicable, the Successor Borrower with respect thereto) would equal or exceed the Consolidated Coverage Ratio of the Borrower immediately prior to giving effect to such transaction;
(iv) each Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guaranty in connection with such transaction and (y) any party to any such consolidation or merger) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guaranty (other than any Subsidiary Guaranty that will be discharged or terminated in connection with such transaction);
(v) each Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Guarantee and Collateral Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have by a supplement to the Guarantee and Collateral Agreement or another document or instrument affirmed that its obligations thereunder shall apply to its Guarantee as reaffirmed pursuant to clause (iv) above;
(vi) each mortgagor of a Mortgaged Fee Property (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Guarantee and Collateral Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have affirmed that its obligations under the applicable Mortgage shall apply to its Guarantee as reaffirmed pursuant to clause (iv); and
(vii) the Borrower will have delivered to the Administrative Agent a certificate signed by a Responsible Officer and a legal opinion, each to the effect that such consolidation, merger or transfer complies with the provisions described in this Subsection 8.7(a), provided that (x) in giving such opinion such counsel may rely on such certificate of such Responsible Officer as to compliance with the foregoing clauses (ii) and (iii) of this Subsection 8.7(a) and as to any matters of fact, and (y) no such legal opinion will be required for a consolidation, no Default merger or Event transfer described in Subsection 8.7(d).
(b) Any Indebtedness that becomes an obligation of Default has occurred and is continuingthe Borrower, any Successor Borrower or liquidate or dissolve itself any Restricted Subsidiary (or suffer that is deemed to be Incurred by any liquidation or dissolutionRestricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this Subsection 8.7, and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with Subsection 8.1(b)(x) (subject, however, in the case of Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor, to the restrictions on Indebtedness of non-Subsidiary Guarantors contained in the proviso at the end of Subsection 8.1(b)(x)).
(c) Upon any transaction involving the Borrower in accordance with Subsection 8.7(a) in which the Borrower is not the Successor Borrower, or dispose the Successor Borrower will succeed to, and be substituted for, and may exercise every right and power of, the Borrower under the Loan Documents, and thereafter the predecessor Borrower shall be relieved of or lease or sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets obligations and business to any other Personcovenants under the Loan Documents, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose the predecessor Borrower in the case of a lease of all or substantially all its assets will not be released from the obligation to pay the principal of and interest on the Term Loans.
(d) Clauses (ii) and (iii) of Subsection 8.7(a) will not apply to any transaction in which the Borrower consolidates or merges with or into or transfers all or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of reincorporating or reorganizing the Borrower in another jurisdiction or changing its legal structure to a corporation or other entity or (y) a Restricted Subsidiary of the Borrower so long as all assets of the Borrower and the Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such Restricted Subsidiary) are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof. Subsection 8.7(a) will not apply to any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessBorrower.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is Sections 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its business units, assets or other properties, except that:
(a) any substantial portion Subsidiary of OpCo or any other Person may be merged, amalgamated or consolidated with or into OpCo; provided that (i) OpCo shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation with or into OpCo, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than OpCo) shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (OpCo or such Person, as the case may be, being herein referred to as the “Successor OpCo”), (ii) the Successor OpCo (if other than OpCo) shall expressly assume all the obligations of OpCo under the OpCo Credit Agreement and the other OpCo Credit Documents pursuant to a supplement thereto in form reasonably satisfactory to the OpCo Administrative Agent, (iii) no Borrowing Base Deficiency or default or event of default under the OpCo Credit Agreement has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, and (iv) if such merger, amalgamation or consolidation involves OpCo and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not an OpCo Subsidiary (A) the Successor OpCo shall be in compliance, on a pro forma basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period under such section as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period, (B) each OpCo Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor OpCo is OpCo, shall have by a supplement to the OpCo Guarantee confirmed that its OpCo Guarantee shall apply to the Successor OpCo’s obligations under the OpCo Credit Agreement, (C) each OpCo Subsidiary grantor and each OpCo Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor OpCo is OpCo, shall have by a supplement to the OpCo Credit Documents confirmed that its obligations thereunder shall apply to the Successor OpCo’s obligations under the OpCo Credit Agreement, (D) each mortgagor of a Mortgaged Property (as defined in the OpCo Credit Agreement), unless it is the other party to such merger or consolidation or unless the Successor OpCo is OpCo, shall have by an amendment to or restatement of the applicable OpCo Mortgage confirmed that its obligations thereunder shall apply to the Successor OpCo’s obligations under the OpCo Credit Agreement, (E) OpCo shall have delivered to the OpCo Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the OpCo Credit Documents preserve the enforceability of the OpCo Guarantee and the perfection and priority of the Liens under the OpCo Security Documents, (F) if reasonably requested by the OpCo Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate the OpCo Agreement or any other OpCo Credit Document; provided, further, that if the foregoing are satisfied, the Successor OpCo (if other than OpCo) will succeed to, and be substituted for, OpCo under the OpCo Credit Agreement and (G) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” in the OpCo Credit Agreement or is otherwise permitted under Section 10.5 of the OpCo Credit Agreement;
(b) any OpCo Subsidiary or any other Person (other than OpCo) may be merged, amalgamated or consolidated with or into any one or more OpCo Subsidiaries; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more OpCo Subsidiaries, (A) an OpCo Subsidiary shall be the continuing or surviving Person or (B) OpCo shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than an OpCo Subsidiary) to become an OpCo Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more OpCo Guarantors, an OpCo Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than an OpCo Guarantor) shall execute a supplement to the OpCo Guarantee, the Pledge Agreement (as defined in the OpCo Credit Agreement) and any applicable OpCo Mortgage, each in form and substance reasonably satisfactory to the OpCo Administrative Agent in order for the surviving Person to become an OpCo Guarantor and pledgor, mortgagor and grantor of Collateral (as defined in the OpCo Credit Agreement) for the benefit of the Secured Parties (as defined in the OpCo Credit Agreement), (iii) no Borrowing Base Deficiency or default or event of default under the OpCo Credit Agreement has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation and (iv) if such merger, amalgamation or consolidation involves an OpCo Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not an OpCo Subsidiary (A) OpCo shall be in compliance, on a pro forma basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period under such section as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period, (B) OpCo shall have delivered to the OpCo Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any OpCo Credit Document preserve the enforceability of the OpCo Guarantee and the perfection and priority of the Liens under the OpCo Security Documents and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” in the OpCo Credit Agreement or is otherwise permitted under Section 10.5 of the OpCo Credit Agreement;
(c) any Subsidiary that is not a Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary and (ii) Dispose of any or all of its propertiesassets (upon voluntary liquidation or otherwise) to the Borrower, assets and business to a Guarantor or any other PersonSubsidiary of the Borrower;
(d) any Guarantor may (i) merge, except that New Hillhaven amalgamate or consolidate with or into any other Guarantor, (ii) [reserved] and (iii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor;
(e) any Subsidiary may leaseliquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Subsidiary is a Credit Party, sell or otherwise dispose of all or any part of its property, assets or business of such Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution; and
(including, without limitation, Stockf) to any Person, including, without limitation, New Hillhaven the extent that no Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesDisposition, assets OpCo and the OpCo Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business (as determined by Disposition, the Board purpose of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing which is to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary effect a Disposition permitted pursuant to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 10.4.
Appears in 1 contract
Limitation on Fundamental Changes. Merge Enter into any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose Dispose of all or lease substantially all of its Property or sellbusiness, or permit except that:
(a) any Subsidiary may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving corporation) or with or into any Subsidiary Guarantor (provided that such Subsidiary Guarantor shall be the continuing or surviving corporation);
(b) any Subsidiary that is not a Subsidiary Guarantor may be merged or consolidated with or into any other Subsidiary that is not a Subsidiary Guarantor;
(c) any Subsidiary may Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to dispose of or lease or sell, all the Borrower or any substantial portion Subsidiary Guarantor;
(d) any Subsidiary that is not a Subsidiary Guarantor may Dispose of any or all of its properties, assets and business (upon voluntary liquidation or otherwise) to any other PersonSubsidiary that is not a Subsidiary Guarantor; and
(e) any Subsidiary may divide if such division would otherwise be permitted if effectuated in the form of a merger, except that New Hillhaven consolidation, amalgamation, sale, lease, transfer, disposition, liquidation, dissolution or other transaction permitted hereunder.;
(f) the Borrower or any Subsidiary may lease, sell merge or otherwise dispose of all consolidate with any other Person in connection with any Permitted Acquisition or any part of its propertyother Investment permitted by Section 6.8 or any Disposition permitted by Section 6.5 (other than Section 6.5(c)); provided that (i) if the Borrower is a party to such merger or consolidation, assets the Borrower is the continuing or business surviving Person and (includingii) if such Subsidiary is a Subsidiary Guarantor, without limitation, Stockthen either such Subsidiary Guarantor shall be the continuing or surviving Person or such surviving Person shall become a Subsidiary Guarantor promptly after such merger or consolidation; and
(g) to any Personthe extent constituting Investments, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business transactions expressly permitted under Sections 6.5 (as determined by the Board of Directors of New Hillhaven in good faithother than Section 6.5(c), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtedness6.8.
Appears in 1 contract
Samples: Credit Agreement (B&G Foods, Inc.)
Limitation on Fundamental Changes. Merge or (a) The Borrower will not consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, any --------------------------------- other Person, unless:
(i) the resulting, surviving or transferee Person (except as the “Successor Borrower”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Borrower (if not the Borrower) will expressly permitted assume all the obligations of the Borrower under this Agreement and the Loan Documents to which it is a party by Section 4(eexecuting and delivering to the Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(ii) hereof) unless New Hillhaven is the surviving corporation and, immediately after giving effect to such merger transaction (and treating any Indebtedness that becomes an obligation of the Successor Borrower or consolidationany Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Borrower or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default has will have occurred and is be continuing, or permit any Subsidiary to merge or consolidate with any other Person ;
(except as expressly permitted by Section 4(eiii) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) immediately after giving effect to such transaction, either (A) the Borrower (or, if applicable, the Successor Borrower with respect thereto) could Incur at least $1.00 of additional Indebtedness pursuant to Subsection 8.1(a) or (B) the Consolidated Coverage Ratio of the Borrower (or, if applicable, the Successor Borrower with respect thereto) would equal or exceed the Consolidated Coverage Ratio of the Borrower immediately prior to giving effect to such transaction;
(iv) each Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guaranty in connection with such transaction and (y) any party to any such consolidation or merger) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guaranty (other than any Subsidiary Guaranty that will be discharged or terminated in connection with such transaction);
(v) each Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Guarantee and Collateral Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have by a supplement to the Guarantee and Collateral Agreement or another document or instrument affirmed that its obligations thereunder shall apply to its Guarantee as reaffirmed pursuant to clause (iv) above;
(vi) each mortgagor of a Mortgaged Fee Property (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Guarantee and Collateral Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have affirmed that its obligations under the applicable Mortgage shall apply to its Guarantee as reaffirmed pursuant to clause (iv); and
(vii) the Borrower will have delivered to the Administrative Agent a certificate signed by a Responsible Officer and a legal opinion, each to the effect that such consolidation, merger or transfer complies with the provisions described in this Subsection 8.7(a), provided that (x) in giving such opinion such counsel may rely on such certificate of such Responsible Officer as to compliance with the foregoing clauses (ii) and (iii) of this Subsection 8.7(a) and as to any matters of fact, and (y) no such legal opinion will be required for a consolidation, no Default merger or Event transfer described in Subsection 8.7(d).
(b) Any Indebtedness that becomes an obligation of Default has occurred and is continuingthe Borrower, any Successor Borrower or liquidate or dissolve itself any Restricted Subsidiary (or suffer that is deemed to be Incurred by any liquidation or dissolutionRestricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this Subsection 8.7, and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with Subsection 8.1(b)(x).
(c) Upon any transaction involving the Borrower in accordance with Subsection 8.7(a) in which the Borrower is not the Successor Borrower, or dispose the Successor Borrower will succeed to, and be substituted for, and may exercise every right and power of, the Borrower under the Loan Documents, and thereafter the predecessor Borrower shall be relieved of or lease or sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets obligations and business to any other Personcovenants under the Loan Documents, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose the predecessor Borrower in the case of a lease of all or substantially all its assets will not be released from the obligation to pay the principal of and interest on the Term Loans.
(d) Clauses (ii) and (iii) of Subsection 8.7(a) will not apply to any transaction in which the Borrower consolidates or merges with or into or transfers all or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of reincorporating or reorganizing the Borrower in another jurisdiction or changing its legal structure to a corporation or other entity or (y) a Restricted Subsidiary of the Borrower so long as all assets of the Borrower and the Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such Restricted Subsidiary) are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof. Subsection 8.7(a) will not apply to any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets Borrower or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessTransactions.
Appears in 1 contract
Limitation on Fundamental Changes. Merge Enter into any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose Dispose of all or any part substantially all of its propertyProperty or business, except that:
(a) any Person may be merged, consolidated or amalgamated with or into the Borrower (provided that the Borrower shall be the continuing or surviving entity and the Borrower shall comply with Section 6.12 in connection therewith) or with or into any Subsidiary Guarantor (provided that (i) the Subsidiary Guarantor shall be the continuing or surviving entity or (ii) simultaneously with such transaction, the continuing or surviving entity shall become a Subsidiary Guarantor and the Borrower shall comply with Section 6.10 and Section 6.12 in connection therewith) and any Immaterial Subsidiary may be merged, consolidated or amalgamated with or into any Immaterial Subsidiary;
(b) any Restricted Subsidiary of the Borrower may liquidate, wind up, dissolve or cease to exist or may Dispose of any or all of its assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value Borrower or any Restricted Subsidiary;
(c) a conversion of any Restricted Subsidiary to another form of organization when no Default or Event of Default exists or would result therefrom; provided that the Borrower and such properties, assets or business (as determined Restricted Subsidiary execute any assumption documents reasonably requested by the Board Administrative Agent to continue the perfection of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing Liens granted pursuant to the contrary, in no event Loan Documents and to continue all other obligations under the Loan Documents to which such Restricted Subsidiary was a party; and
(d) any Immaterial Subsidiary may New Hillhaven lease, sell be liquidated or dissolved or otherwise dispose of or permit any Subsidiary cease to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtednessexist.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its business units, assets or other properties, except that:
(a) any substantial portion Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person (and the Borrower shall remain an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia) or, in the case of a merger, amalgamation or consolidation with or into the Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Event of Default has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, (iv) such merger, amalgamation or consolidation does not adversely affect the Collateral in any material respect, (v) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (B) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (C) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents and as to the matters of the nature referred to in Section 6(c), (vi) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Credit Document and as to such other matters regarding the Successor Borrower and the Credit Documents as the Administrative Agent or its counsel may reasonably request; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement and (F) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; (vi) the Administrative Agent shall have received at least five (5) days prior to the date of such merger, amalgamation or consolidation all documentation and other information about such Subsidiary or other Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Administrative Agent; and (vii) such Subsidiary or other Person shall have executed a customary joinder to the Junior Lien Intercreditor Agreement and any then-existing Acceptable Junior Intercreditor Agreement;
(b) any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, unless otherwise permitted by Section 10.5, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee, the Collateral Agreement and any applicable Mortgage, and a joinder to the Intercompany Note, the Junior Lien Intercreditor Agreement and any then-existing Acceptable Intercreditor Agreement, in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Guarantor, and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note, (iii) no Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation, (iv) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, (A) the Borrower shall be in compliance with Leverage Ratio in Section 10.11 on a Pro Forma Basis immediately after giving effect to such merger, amalgamation or consolidation, (B) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Collateral Agreement and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; and (v) the Administrative Agent shall have received at least five (5) days prior to the date of such merger, amalgamation or consolidation all documentation and other information about such Subsidiary or other Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Administrative Agent or any Lender;
(c) any Restricted Subsidiary that is not a Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its propertiesassets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor, (ii) merge, amalgamate or consolidate with or into any other Subsidiary which is not a Guarantor or Dispose of any or all of its assets and business (upon voluntary liquidation or otherwise) to any other PersonSubsidiary that is not a Guarantor so long as after giving effect to such transaction the Collateral Coverage Condition would be satisfied and the Borrower shall be in compliance with Section 9.11 on a Pro Forma Basis; provided that if such Subsidiary Guarantor is not the surviving entity, except that New Hillhaven such merger, amalgamation or consolidation shall be deemed to be, and any such Disposition shall be, an “Investment” and subject to the limitations set forth in Section 10.5 and (iii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor;
(e) any Restricted Subsidiary may leaseliquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, sell or otherwise dispose of all or any part of its property, assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution;
(includingf) the Borrower and its Restricted Subsidiaries may consummate the Transactions (as defined herein and in the First Lien Credit Agreement);
(g) the Borrower and the Restricted Subsidiaries may consummate a merger, without limitationdissolution, Stockliquidation, amalgamation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 or an Investment permitted by Section 10.5; and
(h) any merger the sole purpose of which is to any Person, including, without limitation, New Hillhaven reincorporate or reorganize a Consolidated Subsidiary for consideration at least equal to Credit Party in another jurisdiction in the fair market United States shall be permitted as long as such merger does not adversely affect the value of such properties, assets or business (as determined the Collateral in any material respect and the surviving entity assumes all Obligations of the applicable Credit Parties under the Credit Documents and delivers any applicable information requested by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all Administrative Agent or any part of its propertyLender under applicable “know your customer” and anti-money laundering rules and regulations, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless including the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessPatriot Act.
Appears in 1 contract
Samples: Credit Agreement (Vine Energy Inc.)
Limitation on Fundamental Changes. Merge or (a) The Parent Borrower will not, and will not permit any other Borrower to, consolidate with or merge or amalgamate with or into, or convey, transfer or lease all or substantially all its assets to, any --------------------------------- other Person, unless:
(i) in the case of the Parent Borrower, the resulting, surviving or transferee Person (except as the “Successor Company”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Parent Borrower) will expressly permitted assume all the obligations of the Parent Borrower under this Agreement and the Loan Documents to which it is a party by Section 4(eexecuting and delivering to the Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(ii) hereof) unless New Hillhaven is the surviving corporation and, immediately after giving effect to such merger transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or consolidationany Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default has will have occurred and be continuing;
(iii) the Payment Condition is continuingsatisfied;
(iv) each applicable Borrower or Subsidiary Guarantor (other than (x) the Parent Borrower, or permit (y) any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, or liquidate or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of Borrower that will be released from its properties, assets and business to any other Person, except that New Hillhaven obligations hereunder or any Subsidiary may leaseGuarantor that will be released from its obligations under its Subsidiary Guarantee, sell in each case in connection with such transaction and (z) any party to any such consolidation, amalgamation or otherwise dispose of all merger) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its obligations hereunder or its Subsidiary Guarantee under the Guarantee and Collateral Agreement, as applicable (other than any Borrower that will be released from its obligation hereunder or any part of its propertySubsidiary Guarantee that will be discharged or terminated, assets or business in each case in connection with such transaction);
(including, without limitation, Stockv) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal the extent required to be Collateral pursuant to the fair market value terms of such propertiesthe Security Documents and this Agreement, assets or business (as determined the Collateral owned by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of Successor Company will (x) continue to constitute Collateral under the foregoing applicable Security Documents and (y) be subject to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME the ABL Collateral Agent;
(vi) the Parent Borrower will have delivered to the Administrative Agent a certificate signed by a Responsible Officer and a legal opinion each to the effect that such consolidation, merger, amalgamation or transfer complies with the provisions described in this paragraph; provided that in giving such opinion such counsel may rely on such certificate of such Responsible Officer as to compliance with the foregoing clauses (ii) and (iii) of this subsection 8.3(a) and as to any matters of fact; and
(vii) in the case of the Canadian Borrower, the Successor Company is organized under the laws of Canada or any province or territory thereof.
(b) The Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Parent Borrower or the applicable Borrower, respectively, under the Loan Documents, and thereafter the predecessor Parent Borrower or the applicable predecessor Borrower, respectively, shall be relieved of all obligations and covenants under this Agreement, except that the predecessor Parent Borrower or the applicable predecessor Borrower, respectively, in the case of a lease of all or substantially all its assets will not be released from the obligation to pay the principal of and interest on the Loans and Reimbursement Obligations owing in connection with Letters of Credit.
(c) Clauses (ii) and (iii) of subsection 8.3(a) will not apply to any transaction in which the Parent Borrower or any other Borrower consolidates, amalgamates or merges with or into or transfers all or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of NMEreincorporating or reorganizing the Parent Borrower or such other Borrower in another jurisdiction or changing its legal structure to a corporation or other entity or (y) a Subsidiary Guarantor so long as all assets of the Parent Borrower or such other Borrower, respectively, and the Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such Subsidiary Guarantor) are owned by such Subsidiary Guarantor and its Restricted Subsidiaries that are Subsidiary Guarantors immediately after the consummation thereof. Subsection 8.3(a) will not apply to (1) any transaction in which any Restricted Subsidiary consolidates or by a Lien securing Indebtedness guaranteed amalgamates with, merges into or transfers all or part of its assets to the Parent Borrower or any other Borrower or (2) the Transactions.
(d) The Parent Borrower will not, and will not permit any other Loan Party to, sell, transfer, license, lease or otherwise dispose of any ABL Priority Collateral that constitutes more than 10.0% of the Borrowing Base outside of the ordinary course of business in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven single transaction or a Consolidated Subsidiary, series of related transaction unless the cash portion of the proceeds from Administrative Agent shall have received an updated Borrowing Base Certificate giving effect to such sale are sufficient, and are applied directly, to repay such Indebtednessdisposition on a pro forma basis.
Appears in 1 contract
Samples: Abl Credit Agreement (Veritiv Corp)
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5 the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any Restricted Subsidiary to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its assets, except that:
(a) the Borrower may merge, consolidate or amalgamate with any substantial portion Person (including any Subsidiary), if (i) the Borrower shall be the surviving, continuing or resulting entity or, if the foregoing is not the case, the surviving, continuing, or resulting entity shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under the Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, and (iv) if such merger, amalgamation or consolidation involves the Borrower and a Person that, before the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) the Successor Borrower shall be in compliance, on a Pro Forma Basis with the Financial Performance Covenants, (B) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation (or unless the Successor Borrower is the Borrower) shall have confirmed in a writing in form and substance acceptable to the Administrative Agent that its propertiesGuarantee shall apply to the Successor Borrower’s obligations under this Agreement (and shall have confirmed that its obligations under the Security Documents shall apply to the Successor Borrower’s obligations under this Agreement), assets (C) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and business (D) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate any Credit Document; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;
(b) any Guarantor may merge, amalgamate or consolidate with (i) any Credit Party (but if the Borrower is involved in the case of any such merger, amalgamation or consolidation, the provisions of clause (a) above shall govern) or (ii) any other PersonPerson (including any other Subsidiary); if (A) in the case of any merger, except amalgamation or consolidation involving one or more Restricted Subsidiaries, (1) a Restricted Subsidiary shall be the continuing or surviving Person or the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (B) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee and any applicable Mortgage, each in form and substance reasonably satisfactory to the Administrative Agent in order for the surviving Person to become a Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties, (C) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation, and (D) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, before the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary, the Borrower shall be in compliance, on a Pro Forma Basis with the Financial Performance Covenants;
(c) any Restricted Subsidiary that New Hillhaven is not a Guarantor may merge, amalgamate or any Subsidiary may leaseconsolidate with, sell or otherwise dispose Dispose of all or any part substantially all of its propertyassets to, the Borrower or any other Restricted Subsidiary (but if the Borrower is involved in the case of any such merger, amalgamation or consolidation, the provisions of clause (a) above shall govern);
(d) any Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, any assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution; and
(including, without limitation, Stocke) to any Personthe extent that no Borrowing Base Deficiency, including, without limitation, New Hillhaven Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesDisposition, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business (as determined by Disposition, the Board purpose of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing which is to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary effect a Disposition permitted pursuant to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 10.4.
Appears in 1 contract
Limitation on Fundamental Changes. Merge Consummate any merger, consolidation or consolidate with any --------------------------------- other Person amalgamation, or liquidate, wind up or dissolve itself, or Dispose of all or substantially all of its Property or business, except that:
(except a) so long as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, (x) any merger, consolidation or permit amalgamation or other transaction the sole purpose of which is to (i) reincorporate or reorganize the Initial Borrower in any State of the United States or reincorporate or reorganize any other Group Member in a Qualified Jurisdiction or (ii) change the form of entity shall be permitted and (y) any Restricted Subsidiary of Mid-Holdings may be merged, consolidated or amalgamated with or into any other Restricted Subsidiary of Mid-Holdings; provided, that, in each case of clauses (x) and (y), (A) in the case of any merger, consolidation or amalgamation involving the Initial Borrower, the Initial Borrower shall be the continuing, surviving or resulting entity and the Capital Stock of the Initial Borrower shall remain Pledged Capital Stock (as defined in the Guarantee and Collateral Agreement) and (B) in the case of any merger, consolidation or amalgamation involving one or more Subsidiary Guarantors or Additional Revolving Borrowers (and not the Initial Borrower), a Subsidiary Guarantor or Additional Revolving Borrower shall be the continuing, surviving or resulting entity or substantially simultaneously with such transaction, the continuing, surviving or resulting entity shall become a Subsidiary Guarantor or Additional Revolving Borrower and Mid-Holdings shall comply with Section 5.9 in connection therewith;
(b) any Restricted Subsidiary of Mid-Holdings (other than the Initial Borrower) may Dispose of all or substantially all of its Property or business, including by way of a merger, amalgamation, dissolution, liquidation or consolidation, (i) to Mid-Holdings, any Borrower or any Subsidiary Guarantor or (ii) pursuant to merge a Disposition permitted by Section 6.5;
(c) any Non-Loan Party Subsidiary may Dispose of all or substantially all of its assets to any other Non-Loan Party Subsidiary;
(d) any merger, consolidation or amalgamation that is contemplated by, and occurs substantially simultaneously with, the Transactions;
(e) any Investment permitted by Section 6.7 may be structured as a merger, consolidation or amalgamation; provided, that in the case of any such merger, consolidation or amalgamation of a Loan Party, the surviving, continuing or resulting legal entity of such merger, consolidation or amalgamation is a Loan Party (or substantially simultaneously with such transaction, the continuing, surviving or resulting entity shall become a Loan Party) and Mid-Holdings shall comply with Section 5.9 in connection therewith;
(i) any Restricted Subsidiary of Mid-Holdings (other than the Initial Borrower and any Excluded Subsidiary) may dissolve, liquidate or wind up its affairs at any time if Mid-Holdings determines in good faith that such dissolution, liquidation or winding up is in the best interest of Holdings and the Group Members, and not materially disadvantageous to the Lenders (as determined by Mid-Holdings in good faith) (provided, that in the case of any dissolution, liquidation or winding up of a Restricted Subsidiary that is a Subsidiary Guarantor or an Additional Revolving Borrower, such Subsidiary shall at or before the time of such dissolution, liquidation or winding up transfer its assets to Mid-Holdings, any Borrower or any Subsidiary Guarantor unless such Disposition of assets is permitted by Section 6.5), and (ii) any Excluded Subsidiary of Mid-Holdings may dissolve, liquidate or wind up its affairs at any time if such dissolution, liquidation or winding up would not have or reasonably be expected to have a Material Adverse Effect (as determined by Mid-Holdings in good faith);
(g) so long as no Default exists or would result therefrom, Mid-Holdings may merge, amalgamate or consolidate with any other Person; provided, that (A) Mid-Holdings shall be the continuing or surviving Person or (except as B) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Mid-Holdings or is a Person into which Mid-Holdings has been liquidated (any such Person, “Successor Mid-Holdings”), (A) Successor Mid-Holdings shall be an entity organized or existing under the laws of a Qualified Jurisdiction, (B) Successor Mid-Holdings shall expressly assume all the obligations of Mid-Holdings under this Agreement and the other Loan Documents to which Mid-Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) Mid-Holdings shall have delivered to the Administrative Agent an officer’s certificate and, if requested by the Administrative Agent, an opinion of counsel, each stating that such merger, amalgamation or consolidation and such supplement to this Agreement or any Loan Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Mid-Holdings will succeed to, and be substituted for, Mid-Holdings under this Agreement;
(h) a merger, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted by pursuant to Section 4(e) hereof) unless 6.5; and
(i) the Permitted English Business Sale, to the extent permitted under Section 6.5(j). Any transaction otherwise permitted by this Section 6.4 that results in any Subsidiary Guarantor or any Additional Revolving Borrower becoming a Non-Loan Party Subsidiary or an Excluded Subsidiary (pursuant to clause (d) of the definition of such term after giving effect to such transaction) shall be deemed an Investment in a Non-Loan Party Subsidiary is the surviving corporation or the consideration received by New Hillhaven for purposes of (and subject to) Section 6.7 in connection therewith is at least an amount equal to the fair market value of such Subsidiary (as reasonably determined by the Board of Directors of New Hillhaven Mid-Holdings in good faith) and (ii) after of such Subsidiary Guarantor or Additional Revolving Borrower prior to giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, or liquidate or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtednesstransaction.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or (a) The Parent Borrower will not consolidate with or merge with or into, or convey, lease or otherwise transfer all or substantially all its assets to, any --------------------------------- other Person, unless:
(i) the resulting, surviving or transferee Person (except as the “Successor Borrower”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Borrower (if not the Parent Borrower or the OpCo Borrower) will expressly permitted assume all the obligations of the Parent Borrower under this Agreement and the Loan Documents to which it is a party by Section 4(eexecuting and delivering to the Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(ii) hereof) unless New Hillhaven is the surviving corporation and, immediately after giving effect to such merger transaction (and treating any Indebtedness that becomes an obligation of the Successor Borrower or consolidationany Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Borrower or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default has will have occurred and is be continuing, or permit any Subsidiary to merge or consolidate with any other Person ;
(except as expressly permitted by Section 4(eiii) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) immediately after giving effect to such transaction, either (A) the Parent Borrower (or, if applicable, the Successor Borrower with respect thereto) could Incur at least $1.00 of additional Indebtedness pursuant to Subsection 8.1(a) or (B) the Consolidated Coverage Ratio of the OpCo Borrower (or, if applicable, the Successor Borrower with respect thereto) would equal or exceed the Consolidated Coverage Ratio of the OpCo Borrower immediately prior to giving effect to such transaction;
(iv) each Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guaranty in connection with such transaction and (y) any party to any such consolidation or merger) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guaranty (other than any Subsidiary Guaranty that will be discharged or terminated in connection with such transaction);
(v) each Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Guarantee and Collateral Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have by a supplement to the Guarantee and Collateral Agreement or another document or instrument affirmed that its obligations thereunder shall apply to its Guarantee as reaffirmed pursuant to clause (iv) above;
(vi) each mortgagor of a Mortgaged Fee Property (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Guarantee and Collateral Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have affirmed that its obligations under the applicable Mortgage shall apply to its Guarantee as reaffirmed pursuant to clause (iv); and
(vii) the Borrower Representative will have delivered to the Administrative Agent a certificate signed by a Responsible Officer and a legal opinion, each to the effect that such consolidation, merger or transfer complies with the provisions described in this Subsection 8.7(a), provided that (x) in giving such opinion such counsel may rely on such certificate of a Responsible Officer as to compliance with the foregoing clauses (ii) and (iii) of this Subsection 8.7(a) and as to any matters of fact, and (y) no such legal opinion will be required for a consolidation, no Default merger or Event transfer described in Subsection 8.7(d).
(b) Any Indebtedness that becomes an obligation of Default has occurred and is continuingthe Parent Borrower (or, if applicable, any Successor Borrower with respect thereto) or liquidate or dissolve itself any Restricted Subsidiary (or suffer that is deemed to be Incurred by any liquidation or dissolution)Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this Subsection 8.7, or dispose and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with Subsection 8.1.
(c) Upon any transaction involving the Parent Borrower in accordance with Subsection 8.7(a) in which the Parent Borrower is not the Successor Borrower, the Successor Borrower will succeed to, and be substituted for, and may exercise every right and power of, the Parent Borrower under the Loan Documents, and thereafter the predecessor Parent Borrower shall be relieved of or lease or sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets obligations and business to any other Personcovenants under the Loan Documents, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose the predecessor Parent Borrower in the case of a lease of all or substantially all its assets will not be released from the obligation to pay the principal of and interest on the Term Loans.
(d) Clauses (ii) and (iii) of Subsection 8.7(a) will not apply to any transaction in which the Parent Borrower consolidates or merges with or into or transfers all or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of reincorporating or reorganizing the Parent Borrower in another jurisdiction or changing its legal structure to a corporation or other entity or (y) a Restricted Subsidiary of the Parent Borrower so long as all assets of the Parent Borrower and the Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such Restricted Subsidiary) are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof. Subsection 8.7(a) will not apply to (i) any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such propertiesParent Borrower, assets (ii) the Transactions or business (as determined by iii) any transaction in which the Board of Directors of New Hillhaven in good faith)Parent Borrower consolidates with, provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell merges into or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of transfers all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessOpCo Borrower.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose Dispose of all or lease substantially all its business units, assets or other properties, except that:
(a) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into the Borrower or the Borrower may Dispose of all or substantially all of its assets or properties; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation where the Borrower is not the continuing or surviving Person, the Borrower, or in connection with a Disposition of all or substantially all of the Borrower’s assets, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the Borrower) or the transferee of such assets or properties shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation, consolidation or Disposition or would result from such consummation of such merger, amalgamation, consolidation or Disposition and (iv) if such merger, amalgamation, consolidation or Disposition involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower (A) each Guarantor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have confirmed by a supplement to the Guarantee that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (B) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and shall have executed a joinder to the Intercompany Note, (C) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, LPL – Conformed A&R Credit Agreement shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (E) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to the Administrative Agent an opinion of counsel to the effect that such merger, amalgamation, consolidation or Disposition does not violate this Agreement or any other Credit Document, (F) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 and (G) the Successor Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation, consolidation or Disposition, with the covenants set forth in Sections 10.9 and 10.10, as such covenants are recomputed as of the last day of the most recently ended Test Period under such Sections as if such merger, amalgamation, consolidation or Disposition had occurred on the first day of such Test Period; provided further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;
(b) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into any one or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its assets or properties; provided that (i) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving corporation or the transferee of such assets or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation, consolidation or Disposition (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation, consolidation involving one or more Subsidiary Guarantors, a Subsidiary Guarantor shall be the continuing or surviving corporation or the Person formed by or surviving any such merger, amalgamation, consolidation or Disposition (if other than a Subsidiary Guarantor) shall execute a supplement to the Guarantee, the Security Agreement, the Pledge Agreement and any applicable Mortgage, and a joinder to the Intercompany Note, each in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Subsidiary Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note; provided that if such surviving Person is a 100% Non-Guarantor Pledgee, such surviving Person shall not be required to become a Guarantor, pledgor, mortgagor or grantor of Collateral, (iii) no Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition and (iv) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower, (A) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Agreement, (B) such merger, amalgamation, consolidation or LPL – Conformed A&R Credit Agreement Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 and (C) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation, consolidation or Disposition, with the covenants set forth in Sections 10.9 and 10.10, as such covenants are recomputed as of the last day of the most recently ended Test Period under such Sections as if such merger, amalgamation, consolidation or Disposition had occurred on the first day of such Test Period;
(c) any Restricted Subsidiary that is not a Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor or into any 100% Non-Guarantor Pledgee, (ii) merge, amalgamate or consolidate with or into any other Restricted Subsidiary which is not a Subsidiary Guarantor; provided that if such Subsidiary Guarantor is not the surviving entity, such merger, amalgamation or consolidation shall be deemed to be an “Investment” and subject to the limitations set forth in Section 10.5 and (iii) sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell license, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, any other Subsidiary Guarantor or any part 100% Non-Guarantor Pledgee;
(e) any Restricted Subsidiary may liquidate or dissolve if (x) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of its propertythe Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Subsidiary Guarantor, any assets or business not otherwise disposed of or transferred in accordance with Section 10.4 or 10.5, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Borrower or another Subsidiary Guarantor after giving effect to such liquidation or dissolution;
(including, without limitation, Stockf) to any Person, including, without limitation, New Hillhaven the extent that no Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesdisposition, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 (as determined by the Board of Directors of New Hillhaven in good faithother than 10.4(i), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtedness).
Appears in 1 contract
Limitation on Fundamental Changes. Merge The Borrower will not, and will cause each of its Restricted Subsidiaries not to, enter into any merger, consolidation or consolidate amalgamation with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingPerson, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion substantially all of its propertiesproperty, business or assets and business to any other Person, except that New Hillhaven except:
(a) a Restricted Subsidiary (other than a License Subsidiary) may merge into or be acquired by the Borrower if the Borrower is the survivor thereof;
(b) a Restricted Subsidiary (other than a License Subsidiary) may merge into or be acquired by a Wholly Owned Restricted Subsidiary if the Wholly Owned Restricted Subsidiary is the survivor thereof;
(c) the Borrower or any Restricted Subsidiary (other than a License Subsidiary) may sell, lease, sell transfer or otherwise dispose of any or all or any part of its property, assets or business in a transaction permitted under Section 6.05;
(including, without limitation, Stockd) to any Person, including, without limitation, New Hillhaven in connection with Permitted Acquisitions where the Borrower or a Consolidated Wholly Owned Restricted Subsidiary for consideration at least equal is the survivor thereof; and
(e) a License Subsidiary may merge into or be acquired by another License Subsidiary and may sell, lease or transfer to another License Subsidiary any or all of its assets in a transaction permitted under Section 6.05. Notwithstanding anything to the fair market value of such propertiescontrary contained in the foregoing, (i) no License Subsidiary shall own or hold any assets or business (as determined other than Operating Agreements and FCC Licenses and other Authorizations issued by the Board FCC relating to Stations or engage in any business other than the ownership (or holding) and maintenance of Directors of New Hillhaven in good faith)Operating Agreements, provided -------- that notwithstanding FCC Licenses and other Authorizations issued by the FCC, (ii) all License Subsidiaries must be Restricted Subsidiaries; and (iii) no License Subsidiary may incur any of the foregoing Indebtedness (other than Guarantees to the contrary2001 Senior Subordinated Note Holders, in no event may New Hillhaven lease2005 Senior Subordinated Note Holders and the Lenders with respect to the 2001 Senior Subordinated Indebtedness, sell or otherwise dispose of or permit any Subsidiary to lease2005 Senior Subordinated Indebtedness and the Obligations, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficientrespectively, and are applied directly, other than Guarantees incurred pursuant to repay such IndebtednessSection 6.02(h)).
Appears in 1 contract
Samples: Credit Agreement (Radio One Inc)
Limitation on Fundamental Changes. Merge Enter into any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose Dispose of all or any part substantially all of its propertyProperty or business, except that:
(a) any Restricted Subsidiary of the Borrower may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving corporation) or with or into any Subsidiary Guarantor (provided that (i) such Subsidiary Guarantor shall be the continuing or surviving corporation or (ii) simultaneously with such transaction, the continuing or surviving corporation shall become a Subsidiary Guarantor and the Borrower shall comply with Section 6.10 in connection therewith);
(b) any Restricted Subsidiary of the Borrower may Dispose of any or all of its assets (upon voluntary liquidation or business (including, without limitation, Stockotherwise) to the Borrower or any Person, including, without limitation, New Hillhaven or a Consolidated Restricted Subsidiary for consideration at least equal to the fair market value of such properties, assets or business Guarantor;
(as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding c) any Immaterial Subsidiary of the foregoing Borrower (i) may be merged or consolidated with or into the Borrower or any other Immaterial Subsidiary of the Borrower and (ii) may Dispose of any or all of its assets (upon voluntary liquidation or otherwise) pro rata to its equity holders;
(i) any Foreign Subsidiary of the contraryBorrower may be merged or consolidated with or into any other Foreign Subsidiary of the Borrower; provided that if such merger or consolidation involves any Foreign Borrower, in no event such Foreign Borrower shall be the continuing or surviving corporation and (ii) any Foreign Subsidiary of the Borrower, other than any Foreign Borrower, may New Hillhaven lease, sell Dispose of any or otherwise dispose all of its assets (upon voluntary liquidation or permit otherwise) pro rata to its equity holders;
(e) The Borrower or any Restricted Subsidiary to lease, sell may consummate a Disposition of any other Restricted Subsidiary (excluding any Foreign Borrower) of the Borrower (or otherwise dispose any Disposition of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion substantially all of the proceeds from assets of such sale are sufficientRestricted Subsidiary) otherwise permitted by Section 7.5(d); and
(f) The Borrower or any Restricted Subsidiary may consummate any Investment otherwise permitted by Section 7.8(h) or (m) by merger or consolidation, provided that if (i) such merger or consolidation involves the Borrower, the Borrower is the continuing or surviving corporation, (ii) if such merger or consolidation involves any Foreign Borrower, such Foreign Borrower is the continuing or surviving corporation and are applied directly(iii) if such merger or consolidation involves a Subsidiary Guarantor, such Subsidiary Guarantor is the continuing or surviving corporation except to repay such Indebtednessthe extent the Borrower could make an equivalent investment in a non-Guarantor pursuant to Section 7.8.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its business units, assets or other properties, except that:
(a) any substantial portion Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation with or into the Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the Borrower) shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, and (iv) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) the Successor Borrower shall be in Pro Forma Compliance after giving effect to such merger, amalgamation or consolidation, (B) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (C) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (F) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Credit Document; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement and (G) such merger, amalgamation or consolidation shall comply with all the conditions set -144- 727670773 12335469 forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; (b) any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee, each applicable Security Agreement and any applicable Mortgage, and a joinder to the Intercompany Note, each in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Guarantor, and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note, (iii) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation and (iv) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, (A) the Borrower shall be in Pro Forma Compliance after giving effect to such merger, amalgamation or consolidation, (B) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Agreements and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; (c) any Restricted Subsidiary that is not a Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its propertiesassets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower; (d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor, (ii) merge, amalgamate or consolidate with or into any other Subsidiary which is not a Guarantor or Dispose of any or all of its assets and business (upon voluntary liquidation or otherwise) to any other PersonSubsidiary that is not a Guarantor; provided that if such Subsidiary Guarantor is not the surviving entity, except that New Hillhaven such merger, amalgamation or consolidation shall be deemed to be, and any such Disposition shall be, (A) an “Investment” and subject to the limitations set forth in Section 10.5 and (B) a “Disposition” and subject to the limitations set forth in Section 10.4; and (iii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any Subsidiary may lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtedness.other Guarantor; -145- 727670773 12335469
Appears in 1 contract
Samples: Credit Agreement (EP Energy Corp)
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is Sections 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its assets, except that:
(a) the Borrower may merge, consolidate or amalgamate with any substantial portion Person (including any Subsidiary), provided that (i) the Borrower shall be the surviving, continuing or resulting entity or, if the foregoing is not the case, the surviving, continuing, or resulting entity shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Borrowing Base Deficiency (during a Borrowing Base Trigger Period), Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation, consolidation or would result from such consummation of such merger, amalgamation, consolidation, and (iv) if such merger, amalgamation, consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation, consolidation, is not a Subsidiary of the Borrower (A) the Successor Borrower shall be in compliance, on a Pro Forma Basis with the Financial Performance Covenants, (B) each Guarantor, unless it is the other party to such merger, amalgamation, consolidation (or unless the Successor Borrower is the Borrower) shall have confirmed in a 10-Q writing in form and substance acceptable to the Administrative Agent that its propertiesGuarantee shall apply to the Successor Borrower’s obligations under this Agreement (and, assets during a Borrowing Base Trigger Period, shall have confirmed that its obligations under the Security Documents shall apply to the Successor Borrower’s obligations under this Agreement), (C) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and business (D) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation, consolidation does not violate this Agreement or any other PersonCredit Document; provided, except further, that New Hillhaven if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;
(b) any Guarantor may merge, amalgamate or consolidate with (i) any Credit Party (provided that if the Borrower is involved in the case of any such merger, amalgamation or consolidation, the provisions of clause (a) above shall govern) or (ii) any other Person (including any other Subsidiary of the Borrower); provided that (A) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (1) a Restricted Subsidiary shall be the continuing or surviving Person or (2) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (B) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee and any applicable Mortgage, each in form and substance reasonably satisfactory to the Administrative Agent in order for the surviving Person to become a Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties, (C) no Borrowing Base Deficiency (during a Borrowing Base Trigger Period), Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation, and (D) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, the Borrower shall be in compliance, on a Pro Forma Basis with the Financial Performance Covenants;
(c) any Restricted Subsidiary that is not a Guarantor may leasemerge, sell amalgamate or otherwise dispose consolidate with, or Dispose of all or any part substantially all of its propertyassets to, the Borrower or any other Restricted Subsidiary (provided that if the Borrower is involved in the case of any such merger, amalgamation or consolidation, the provisions of clause (a) above shall govern);
(d) any Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, any assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution; and
(including, without limitation, Stocke) to any Personthe extent that no Borrowing Base Deficiency (during a Borrowing Base Trigger Period), including, without limitation, New Hillhaven Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesDisposition, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business (as determined by Disposition, the Board purpose of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing which is to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary effect a Disposition permitted pursuant to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 10.4.
Appears in 1 contract
Limitation on Fundamental Changes. Merge Enter into any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose Dispose of all or lease substantially all of its Property or sellbusiness, except that:
(a) any Solvent Subsidiary of the Borrower may be merged or permit consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving corporation) or with or into any Guarantor which is a Wholly Owned Subsidiary of the Borrower (provided that such Guarantor shall be the continuing or surviving corporation);
(b) any Subsidiary of the Borrower may Dispose of any or all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to dispose of or lease or sell, all the Borrower or any substantial portion Guarantor which is a Wholly Owned Subsidiary of its propertiesthe Borrower;
(c) the Borrower or any Subsidiary thereof may merge with any Person in connection with a Permitted Acquisition; provided that if such transaction involves the Borrower, the Borrower shall be the continuing or surviving corporation and, if such transaction involves any Subsidiary of the Borrower, the surviving corporation must be or become a Subsidiary Guarantor; and
(d) any Excluded Foreign Subsidiary (i) may be merged with or consolidated with or into any other Excluded Foreign Subsidiary; provided that the ownership interest of the Borrower in the surviving Subsidiary is no less than the Borrower’s ownership interest in the merged Subsidiary and (ii) may transfer assets and business of reasonably equivalent value to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Excluded Foreign Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtedness.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose Dispose of all or lease substantially all its business units, assets or other properties, except that:
(a) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into the Borrower or the Borrower may 161 LPL – A&R Credit Agreement Dispose of all or substantially all of its assets or properties; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation where the Borrower is not the continuing or surviving Person, the Borrower, or in connection with a Disposition of all or substantially all of the Borrower’s assets, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the Borrower) or the transferee of such assets or properties shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation, consolidation or Disposition or would result from such consummation of such merger, amalgamation, consolidation or Disposition and (iv) if such merger, amalgamation, consolidation or Disposition involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower (A) each Guarantor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have confirmed by a supplement to the Guarantee that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (B) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and shall have executed a joinder to the Intercompany Note, (C) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (E) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to the Administrative Agent an opinion of counsel to the effect that such merger, amalgamation, consolidation or Disposition does not violate this Agreement or any other Credit Document, (F) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 and (G) the Successor Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation, consolidation or Disposition, with the covenants set forth in Sections 10.9 and 10.10, as such covenants are recomputed as of the last day of the most recently ended Test Period under such Sections as if such merger, amalgamation, consolidation or Disposition had occurred on the first day of such Test Period; provided further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;
(b) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into any one or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all 162 LPL – A&R Credit Agreement of its assets or properties; provided that (i) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving corporation or the transferee of such assets or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation, consolidation or Disposition (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation, consolidation involving one or more Subsidiary Guarantors, a Subsidiary Guarantor shall be the continuing or surviving corporation or the Person formed by or surviving any such merger, amalgamation, consolidation or Disposition (if other than a Subsidiary Guarantor) shall execute a supplement to the Guarantee, the Security Agreement, the Pledge Agreement and any applicable Mortgage, and a joinder to the Intercompany Note, each in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Subsidiary Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note; provided that if such surviving Person is a 100% Non-Guarantor Pledgee, such surviving Person shall not be required to become a Guarantor, pledgor, mortgagor or grantor of Collateral, (iii) no Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition and (iv) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower, (A) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Agreement, (B) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 and (C) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation, consolidation or Disposition, with the covenants set forth in Sections 10.9 and 10.10, as such covenants are recomputed as of the last day of the most recently ended Test Period under such Sections as if such merger, amalgamation, consolidation or Disposition had occurred on the first day of such Test Period;
(c) any Restricted Subsidiary that is not a Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor or into any 100% Non-Guarantor Pledgee, (ii) merge, amalgamate or consolidate with or into any other Restricted Subsidiary which is not a Subsidiary Guarantor; provided that if such Subsidiary Guarantor is not the surviving entity, such merger, amalgamation or consolidation shall be deemed to be an “Investment” and subject to the limitations set forth in Section 10.5 and (iii) sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell license, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, any other Subsidiary Guarantor or any part 100% Non-Guarantor Pledgee; 163 LPL – A&R Credit Agreement
(e) any Restricted Subsidiary may liquidate or dissolve if (x) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of its propertythe Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Subsidiary Guarantor, any assets or business not otherwise disposed of or transferred in accordance with Section 10.4 or 10.5, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Borrower or another Subsidiary Guarantor after giving effect to such liquidation or dissolution;
(including, without limitation, Stockf) to any Person, including, without limitation, New Hillhaven the extent that no Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesdisposition, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 (as determined by the Board of Directors of New Hillhaven in good faithother than 10.4(i), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtedness).
Appears in 1 contract
Samples: Fourth Amendment Agreement (LPL Financial Holdings Inc.)
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e10.4 (other than Section 10.4(f) hereof) unless New Hillhaven is and other than in the surviving corporation andcase of a sale of all or substantially all of the business units, after giving effect to such merger assets or consolidationother properties of the Borrower and the Restricted Subsidiaries, no Default or Event of Default has occurred and is continuingtaken as a whole), or permit any Subsidiary to merge or consolidate with any Section 10.5 (other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faiththan Sections 10.5(i) and (ii) after giving effect to such merger u)), the Borrower will not and will not permit any of the Restricted Subsidiaries to, consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or liquidate liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose Dispose of all or lease substantially all its business units, assets or other properties, except that:
(a) any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation where the Borrower is not the continuing or surviving Person, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the Borrower) shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation and (iv) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower (A) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have confirmed by a supplement to the Guarantee that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (B) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and shall have executed a joinder to the Intercompany Note, (C) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (E) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to the Administrative Agent an opinion of counsel to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Credit Document, (F) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 and (G) the Successor Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation, consolidation or Disposition, with the covenant set forth in Section 10.9 (whether or not such covenant was required to be tested as of the end of the most recently ended fiscal quarter), as such covenant is recomputed as of the last day of the most recently ended Test Period under such Section as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period; provided further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;
(b) any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into any one or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its assets or properties; provided that (i) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving corporation or the transferee of such assets or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation, consolidation or Disposition (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation, consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation, consolidation or Disposition (if other than a Guarantor) shall execute a supplement to the Guarantee, the Security Agreement, the Pledge Agreement and any applicable Mortgage, and a joinder to the Intercompany Note, each in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note, (iii) no Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition and (iv) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower, (A) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Agreement, (B) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 and (C) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation, consolidation or Disposition, with the covenant set forth in Section 10.9 (whether or not such covenant was required to be tested as of the end of the most recently ended fiscal quarter), as such covenant is recomputed as of the last day of the most recently ended Test Period under such Section as if such merger, amalgamation, consolidation or Disposition had occurred on the first day of such Test Period;
(c) any Restricted Subsidiary that is not a Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Guarantor may (i) merge, amalgamate or consolidate with or into any other Guarantor, (ii) merge, amalgamate or consolidate with or into any other Restricted Subsidiary which is not a Guarantor; provided that if such Guarantor is not the surviving entity, such merger, amalgamation or consolidation shall be deemed to be an “Investment” and subject to the limitations set forth in Section 10.5 and (iii) sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell license, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any part other Guarantor;
(e) any Restricted Subsidiary may liquidate or dissolve if (x) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of its propertythe Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Guarantor, any assets or business not otherwise disposed of or transferred in accordance with Section 10.4 or 10.5, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Borrower or another Guarantor after giving effect to such liquidation or dissolution;
(including, without limitation, Stockf) to any Person, including, without limitation, New Hillhaven the extent that no Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesdisposition, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 (as determined by the Board of Directors of New Hillhaven in good faithother than Sections 10.4(f) and (i), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtedness).
Appears in 1 contract
Limitation on Fundamental Changes. Merge Consummate any merger, consolidation or consolidate with any --------------------------------- other Person amalgamation, or liquidate, wind up or dissolve itself, or Dispose of all or substantially all of its Property or business, except that:
(except a) so long as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, (x) any merger, consolidation or permit amalgamation or other transaction the sole purpose of which is to (i) reincorporate or reorganize the Initial Borrower in any State of the United States or reincorporate or reorganize any other Borrower Group Member in a Qualified Jurisdiction (provided that any Group Member that is organized under the laws of the United States or any State thereof or the District of Columbia shall only reincorporate or reorganize in any State of the United States or the District of Columbia) or (ii) change the form of entity shall be permitted and (y) any Restricted Subsidiary of the Initial Borrower may be merged, consolidated or amalgamated with or into any other Restricted Subsidiary of the Initial Borrower; provided, that, in each case of clauses (x) and (y), (A) in the case of any merger, consolidation or amalgamation involving the Initial Borrower, the Initial Borrower shall be the continuing, surviving or resulting entity and the Capital Stock of the Initial Borrower shall remain Pledged Capital Stock and (B) in the case of any merger, consolidation or amalgamation involving one or more Subsidiary Guarantors or Additional Borrowers (and not the Initial Borrower), a Subsidiary Guarantor or Additional Borrower shall be the continuing, surviving or resulting entity or substantially simultaneously with such transaction, the continuing, surviving or resulting entity shall become a Subsidiary Guarantor or Additional Borrower and the Initial Borrower shall comply with Section 5.9 in connection therewith;
(b) any Restricted Subsidiary of the Initial Borrower may Dispose of all or substantially all of its Property or business, including by way of a merger, amalgamation, dissolution, liquidation or consolidation, (i) to any Borrower or any Subsidiary Guarantor or (ii) pursuant to merge a Disposition permitted by Section 6.5;
(c) any Non-Loan Party Subsidiary may Dispose of all or substantially all of its assets to any other Non-Loan Party Subsidiary;
(d) any merger, consolidation or amalgamation that is contemplated by, and occurs substantially simultaneously with, the Transactions;
(e) any Investment permitted by Section 6.7 may be structured as a merger, consolidation or amalgamation; provided, that in the case of any such merger, consolidation or amalgamation of a Borrower Loan Party, the surviving, continuing or resulting legal entity of such merger, consolidation or amalgamation is a Borrower Loan Party (or substantially simultaneously with such transaction, the continuing, surviving or resulting entity shall become a Borrower Loan Party) and the Initial Borrower shall comply with Section 5.9 in connection therewith;
(f) (i) any Restricted Subsidiary of the Initial Borrower (other than any Excluded Subsidiary) may dissolve, liquidate or wind up its affairs at any time if the Initial Borrower determines in good faith that such dissolution, liquidation or winding up is in the best interest of the Initial Borrower and the Borrower Group Members, and not materially disadvantageous to the Lenders (as determined by the Initial Borrower in good faith) (provided, that in the case of any dissolution, liquidation or winding up of a Restricted Subsidiary that is a Subsidiary Guarantor or an Additional Borrower, such Subsidiary shall at or before the time of such dissolution, liquidation or winding up transfer its assets to any Borrower or any Subsidiary Guarantor unless such Disposition of assets is permitted by Section 6.5), and (ii) any Excluded Subsidiary of the Initial Borrower may dissolve, liquidate or wind up its affairs at any time if such dissolution, liquidation or winding up would not have or reasonably be expected to have a Material Adverse Effect (as determined by the Initial Borrower in good faith);
(g) so long as no Default or Event of Default exists or would result therefrom, the Initial Borrower may merge, amalgamate or consolidate with any other Person; provided, that (A) the Initial Borrower shall be the continuing or surviving Person or (except as B) if the Person formed by or surviving any such merger, amalgamation or consolidation is not the Initial Borrower or is a Person into which the Initial Borrower has been liquidated (any such Person, “Successor Initial Borrower”), (A) Successor Initial Borrower shall be an entity organized or existing under the laws of the United States or any State or political subdivision thereof, (B) the Successor Initial Borrower shall expressly assume all the obligations of the Initial Borrower under this Agreement and the other Loan Documents to which the Initial Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) the Initial Borrower shall have delivered to the Administrative Agent an officer’s certificate and, if requested by the Administrative Agent, an opinion of counsel, each stating that such merger, amalgamation or consolidation and such supplement to this Agreement or any Loan Document comply with this Agreement and (D) immediately after giving effect to such transaction, either (x) the Consolidated Fixed Charge Coverage Ratio determined on a Pro Forma Basis is less than 2.00:1.00 for the Relevant Reference Period or (y) the Consolidated Fixed Charge Coverage Ratio for the Relevant Reference Period would not be lower than it was immediately prior to giving effect to such transaction; provided, further, that if the foregoing are satisfied, the Successor Initial Borrower will succeed to, and be substituted for, the Initial Borrower under this Agreement; and
(h) a merger, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 6.5. Any transaction otherwise permitted by this Section 4(e6.4 that results in any Subsidiary Guarantor or any Additional Borrower becoming a Non-Loan Party Subsidiary or an Excluded Subsidiary (pursuant to clause (d) hereofof the definition of such term after giving effect to such transaction) unless shall be deemed an Investment in a Non-Loan Party Subsidiary for purposes of (iand subject to) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven Section 6.7 in connection therewith is at least an amount equal to the fair market value of such Subsidiary (as reasonably determined by the Board of Directors of New Hillhaven Initial Borrower in good faith) and (ii) after of such Subsidiary Guarantor or Additional Borrower prior to giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, or liquidate or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtednesstransaction.
Appears in 1 contract
Samples: Abl Credit Agreement (Foundation Building Materials, Inc.)
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 9.4 or 9.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion of substantially all its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its propertyunits, assets or business other properties, except that:
(includinga) so long as no Default or Event of Default would result therefrom, without limitationany Subsidiary of the Borrower or any other Person may be merged, Stockamalgamated or consolidated with or into the Borrower, provided that (i) except as permitted by subclause (ii) below, the Borrower shall be the continuing or surviving corporation, (ii) if the Person formed by or surviving any such merger, amalgamation or consolidation involving the Borrower is not the Borrower, the surviving Person shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia (the Borrower or such surviving Person, as the case may be, being herein referred to as the “Successor Borrower”), (iii) any Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iv) each applicable Credit Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the applicable Credit Documents confirmed that its obligations under the Credit Document continue to apply to any Successor Borrower’s obligations under this Agreement, (v) the Consolidated Interest Coverage Ratio for the most recent Test Period would either (A) be at least 2.0 to 1.0 or (B) be greater than the Consolidated Interest Coverage Ratio immediately prior to such transaction, and (vi) the Successor Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer stating that such merger or consolidation complies with this Agreement (it being understood that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement); and
(b) any Person (in each case, other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Restricted Subsidiaries of the Borrower, provided that (i) either (x) such merger amalgamation or consolidation constitutes a Disposition permitted by Section 9.4 or (y) a Restricted Subsidiary shall be the continuing or surviving Person and the Investment resulting from such merger, amalgamation or consolidation is permitted by Section 9.5, (ii) in the case of any merger, amalgamation or consolidation in which a Guarantor is the surviving Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal such Guarantor shall execute any supplement to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven applicable Guarantee and Security Documents in good faith), provided -------- that notwithstanding any of the foregoing form and substance reasonably satisfactory to the contraryAdministrative Agent in order to preserve and protect the Liens on the Collateral securing the applicable Obligations and (iii) the Borrower shall have delivered to the Administrative Agent an officers’ certificate stating that such merger, in no event may New Hillhaven lease, sell amalgamation or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtednessconsolidation complies with this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Univar Inc.)
Limitation on Fundamental Changes. Merge or consolidate with The Borrower will not enter into any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingliquidate, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion of substantially all its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its propertyunits, assets or business other properties, except that:
(includinga) any Subsidiary of the Borrower or any other Person may be merged or consolidated (including by way of liquidation or winding up) with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving entity or, without limitationso long as after giving effect to such merger or consolidation such Person’s debt rating shall be in “Category 5” or higher, Stockas determined pursuant to the definition of “Applicable Margin”, the Person formed by or surviving any such merger or consolidation (if other than the Borrower) to shall be an entity organized or existing under the laws of the United States or any State thereof, (the Borrower or such Person, includingas the case may be, without limitationbeing herein referred to as the “Successor Borrower”), New Hillhaven or (ii) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement pursuant to a Consolidated Subsidiary for consideration at least equal supplement hereto in form and substance reasonably satisfactory to the fair market value Administrative Agent, (iii) no Default or Event of Default is then existing and no Default or Event of Default would result from the consummation of such propertiesmerger or consolidation, assets (iv) the Borrower shall be in compliance, on a pro forma basis after giving effect to such merger or business (consolidation, with the covenants set forth in Section 9.4 as determined by such covenants are recomputed as at the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any last day of the foregoing most recently ended fiscal quarter as if such merger or consolidation had occurred on such day, and (v) the Borrower shall have delivered to the contraryAdministrative Agent an officer’s certificate, in form and substance reasonably satisfactory to the Administrative Agent, certifying the compliance referred to in clause (iv) above and stating that such merger or consolidation and such supplement to this Agreement comply with this Agreement and a legal opinion (in form and substance reasonably satisfactory to the Administrative Agent) with respect to this Agreement to be delivered, if any, pursuant to clause (ii) above; provided further that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement; and
(b) the Borrower may enter into any merger or consolidation for the purpose of changing its organizational form from a corporation to a limited liability company or from a limited liability company to a corporation; provided that such change has no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless adverse affect on the cash portion rights of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessFinance Parties.
Appears in 1 contract
Limitation on Fundamental Changes. Merge The Borrower will not, and will not permit any of the Restricted Subsidiaries to, consummate any merger, division, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its business units, assets or other properties, except that:
(a) any substantial portion Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person (and the Borrower shall remain an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia) or, in the case of a merger, amalgamation or consolidation with or into the Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Event of Default or Borrowing Base Deficiency has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, (iv) the Borrower’s Consolidated Secured Net Leverage Ratio on a pro forma basis shall not exceed that of the Borrower immediately prior to the consummation of such merger, amalgamation or consolidation, (v) such merger, amalgamation or consolidation does not adversely affect the Collateral, taken as a whole, in any material respect, (vi) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (B) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (C) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents and as to the matters of the nature referred to in Section 6(c), (E) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Credit Document and as to such other matters regarding the Successor Borrower and the Credit Documents as the Administrative Agent or its counsel may reasonably request; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement and (F) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; (vii) the Administrative Agent shall have received at least five (5) days prior to the date of such merger, amalgamation or consolidation all documentation and other information about such Successor Borrower, Subsidiary or other Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Administrative Agent; and (viii) such Subsidiary or other Person shall have executed a customary joinder to any then-existing Junior Lien Intercreditor Agreement;
(b) any Subsidiary of the Borrower or any other Person (other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, unless otherwise permitted by Section 10.5, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee, the Collateral Agreement and any applicable Mortgage, and a joinder to the Intercompany Note and any then-existing Junior Lien Intercreditor Agreement, in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Guarantor, and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note and any then-existing Junior Lien Intercreditor Agreement, (iii) no Default, Event of Default or Borrowing Base Deficiency has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation, (iv) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, (A) the Borrower’s Consolidated Secured Net Leverage Ratio on a pro forma basis shall not exceed that of the Borrower immediately prior to the consummation of such merger, amalgamation or consolidation, (B) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Collateral Agreement and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; and (v) the Administrative Agent shall have received at least five (5) days prior to the date of such merger, amalgamation or consolidation all documentation and other information about such Subsidiary or other Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Administrative Agent or any Lender;
(c) any Restricted Subsidiary that is not a Grantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Grantor and (ii) Dispose of any or all of its propertiesassets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower (other than to the Production Sharing Entities);
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor;
(e) any Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, any assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Guarantor after giving effect to such liquidation or dissolution; provided, that no Production Sharing Contract shall be Disposed of or transferred to the Borrower or a Guarantor;
(f) the Borrower and its Restricted Subsidiaries may consummate the Transactions;
(g) the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, amalgamation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 or an Investment permitted by Section 10.5;
(h) a Credit Party may consummate any merger the sole purpose of which is to reincorporate or reorganize such Credit Party in another jurisdiction in the United States as long as such merger does not adversely affect the value of the Collateral in any material respect and the surviving entity assumes all Obligations of the applicable Credit Party under the Credit Documents by delivering the information required by Section 9.10 and delivers any applicable information required by Section 9.1(m); and
(i) any Production Sharing Entity may (i) merge, amalgamate or consolidate with or into any other Production Sharing Entity and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessProduction Sharing Entity.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit the Restricted Subsidiaries to, consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to dispose of or lease or sellotherwise consummate the disposition of, all or any substantial portion of substantially all its business units, assets or other properties, assets except that:
(a) so long as (i) both before and business after giving effect to such transaction, no Payment Default or Event of Default has occurred and is continuing or would result therefrom and (ii) after giving effect to such transaction the Borrower shall be in compliance, on a Pro Forma Basis, with the covenant set forth in Section 10.9, any Subsidiary of the Borrower or any other PersonPerson may be merged, except amalgamated or consolidated with or into the Borrower; provided that New Hillhaven the Borrower shall be the continuing or surviving company;
(b) so long as no Payment Default or Event of Default has occurred and is continuing, or would result therefrom, any Subsidiary of the Borrower or any other Person (in each case, other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee and the relevant Security Documents and a joinder to the Intercompany Subordinated Note, each in form and substance reasonably satisfactory to the Administrative Agent in order to become a Guarantor and pledgor, mortgagor and grantor, as applicable, thereunder for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Subordinated Note and (iii) the Borrower shall have delivered to the Administrative Agent an officers’ certificate stating that such merger, amalgamation or consolidation and any such supplements to the Guarantee and any Security Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the applicable Security Documents;
(c) [reserved];
(d) any Restricted Subsidiary that is not a Credit Party may sell, lease, sell transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any part of its property, assets other Restricted Subsidiary;
(e) the Borrower or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contraryBorrower may sell, in no event may New Hillhaven lease, sell transfer or otherwise dispose of any or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its propertyassets (upon voluntary liquidation or otherwise) to any Credit Party; provided that the consideration for any such disposition by any Person other than a Guarantor shall not exceed the fair value of such assets;
(f) any Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, any assets or business (including, without limitation, Stock) encumbered by a Lien of such Restricted Subsidiary not otherwise disposed of or transferred in favor of NME accordance with Section 10.4 or an Affiliate of NME10.5, or by in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Lien securing Indebtedness guaranteed Credit Party after giving effect to such liquidation or in dissolution; and
(g) to the extent that no Payment Default or Event of Default has occurred and is continuing or would result from the consummation of such Disposition, the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or disposition, the purpose of which is to effect guaranteed by NME or an Affiliate of NME, a Disposition permitted pursuant to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 10.4.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Energy Future Competitive Holdings Co LLC)
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andBorrower will not and will not permit any of the Restricted Subsidiaries to, after giving effect to such merger consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose Dispose of all or lease substantially all of its business units, assets or sellother properties, or permit except that:
(a) any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person, (ii) no Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation and (iii) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to dispose the consummation of such merger, amalgamation or lease consolidation, is not a Restricted Subsidiary of the Borrower (A) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or sellconsolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (B) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to the Administrative Agent an opinion of counsel to the effect that such merger, amalgamation or consolidation does not breach or result in a default under this Agreement or any other Credit Document and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5;
(b) any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into any one or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or any substantial portion substantially all of its propertiesbusiness units, assets and business other properties; provided that, (i) in the case of any merger, amalgamation or Disposition involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or the transferee of such assets or (B) the Borrower shall cause the Person formed by or surviving any such merger, amalgamation or consolidation or the transferee of such assets and properties (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Subsidiary Guarantors, a Subsidiary Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation or the transferee of such assets and properties (if other than a Subsidiary Guarantor) shall execute a supplement to the Guarantee, the Security Agreement, the applicable Pledge Agreement and any applicable Mortgage, and a joinder to the Intercompany Note, each in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Subsidiary Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note, (iii) no Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition and (iv) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary, (A) the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer stating that such merger, amalgamation, consolidation or Disposition and such supplements to any Table of Contents Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents and (B) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5;
(c) any Restricted Subsidiary that is not a Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other PersonRestricted Subsidiary and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, except that New Hillhaven a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor, (ii) merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Subsidiary Guarantor; provided that, if such Subsidiary Guarantor is not the surviving entity, such merger, amalgamation or consolidation shall be deemed to be an “Investment” and subject to the limitations set forth in Section 10.5 and (iii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Subsidiary Guarantor;
(e) any Restricted Subsidiary may leaseliquidate or dissolve if (x) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Subsidiary Guarantor, sell or otherwise dispose of all or any part of its property, assets or business (includingnot otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contraryor, in no event may New Hillhaven leasethe case of any such business, sell discontinued, shall be transferred to, or otherwise dispose owned or conducted by, the Borrower or another Subsidiary Guarantor after giving effect to such liquidation or dissolution; and
(f) the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or Disposition, the purpose of or permit any Subsidiary which is to lease, sell or otherwise dispose of all or any part of its property, assets or business effect a Disposition permitted pursuant to Section 10.4 (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtednessother than 10.4(i)).
Appears in 1 contract
Samples: Credit Agreement (Amsurg Corp)
Limitation on Fundamental Changes. Merge or consolidate with Such Borrower will not enter into any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingliquidate, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion of substantially all its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its propertyunits, assets or business other properties, except that:
(includinga) any Subsidiary of such Borrower or any other Person may be merged or consolidated (including by way of liquidation or winding up) with or into such Borrower; provided that (i) such Borrower shall be the continuing or surviving entity or, without limitationso long as after giving effect to such merger or consolidation such Person's debt rating shall be in "Category 6" or higher, Stockas determined pursuant to the definition of "Applicable Margin", the Person formed by or surviving any such merger or consolidation (if other than such Borrower) to shall be an entity organized or existing under the laws of the United States or any State thereof, (such Borrower or Person, includingas the case may be, without limitationbeing herein referred to as the "SUCCESSOR BORROWER"), New Hillhaven or (ii) such Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement pursuant to a Consolidated Subsidiary for consideration at least equal supplement hereto in form and substance reasonably satisfactory to the fair market value Administrative Agent, (iii) no Default or Event of Default with respect to such Borrower is then existing and no Default or Event of Default with respect to such Borrower would result from the consummation of such propertiesmerger or consolidation, assets (iv) such Borrower shall be in compliance, on a pro forma basis after giving effect to such merger or business (consolidation, with the covenants set forth in Section 9.4 as determined by such covenants are recomputed as at the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any last day of the foregoing most recently ended Test Period under each such Section as if such merger or consolidation had occurred on the first day of such Test Period, and (v) such Borrower shall have delivered to the contraryAdministrative Agent an officer's certificate, in form and substance reasonably satisfactory to the Administrative Agent, certifying the compliance referred to in clause (iv) above and stating that such merger or consolidation and such supplement to this Agreement comply with this Agreement and a legal opinion (in form and substance reasonably satisfactory to the Administrative Agent) with respect to this Agreement to be delivered, if any, pursuant to clause (ii) above; provided further that if the foregoing are satisfied, such Successor Borrower (if other than such Borrower) will succeed to, and be substituted for, such Borrower under this Agreement; and
(b) such Borrower may enter into any merger or consolidation for the purpose of changing its organizational form from a corporation to a limited liability company or from a limited liability company to a corporation; provided that such change has no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless adverse affect on the cash portion rights of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessFinance Parties.
Appears in 1 contract
Limitation on Fundamental Changes. Merge Enter into any transaction to acquire a business or a business unit as a going concern or merge, consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamate, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or substantially all of the property, business or assets of the Borrower, of IU International or of the Parent and its Subsidiaries taken as a whole or convey, issue, sell, lease, assign, transfer or otherwise dispose of any substantial portion common stock of its propertiesthe Borrower or of IU International, assets except:
(a) any Unrestricted Company may be merged or consolidated with or into another Unrestricted Company; provided that no domestic Unrestricted Company may merge with and business to into a Foreign Subsidiary unless the domestic corporation is the surviving entity;
(b) any Restricted Company may be merged or consolidated with or into any other PersonRestricted Company and may convey, except that New Hillhaven or any Subsidiary may sell, lease, sell assign, transfer or otherwise dispose of all or any substantial part of its property, business or assets or business (including, without limitation, Stock) to any other Restricted Company (other than the Parent); provided that (i) the Parent may not be merged or consolidated with or into any other Person, including(ii) neither the Parent nor any of its Subsidiaries may merge, without limitation, New Hillhaven consolidate or a Consolidated Subsidiary for consideration at least equal dispose of their respective businesses or assets in any fashion which would cause the Senior Notes to cease to be structurally subordinate to the fair market value of such propertiesIndebtedness evidenced hereunder and under the Revolving Credit Notes and under the Swingline Note, assets (iii) the Borrower may only merge or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding consolidate with any Restricted Subsidiary which is a Subsidiary of the foregoing to Borrower existing on the contrarydate hereof and, in no event any such merger or consolidation involving the Borrower, the Borrower shall be the surviving entity and (iv) the Borrower may New Hillhaven not convey, sell, lease, sell or otherwise dispose of or permit any Subsidiary to leaseassign, sell transfer or otherwise dispose of all or any part substantially all of its property, business or assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person;
(c) any Person listed on Schedule 7.5(c) may be liquidated, includingwound up or dissolved in a transaction or transactions in which no Person other than the Restricted Companies receives any consideration; and
(d) any acquisition of a business or business unit as a going concern to the extent that the sum of (A) the aggregate fair market value of consideration (including cash, without limitationproperty, New Hillhaven or a Consolidated Subsidiary, unless the cash portion common stock of the proceeds from Parent issued for purposes of such sale are sufficientacquisition and all other consideration other than Indebtedness permitted by subsection 7.2(h)) paid for all such acquisitions, and are applied directlyall acquisitions permitted under subsection 7.9(i), to repay such Indebtednessafter the Closing Date, and (B) the aggregate amount of all capital contributions permitted under subsection 7.9(i) after the Closing Date shall not exceed $30,000,000.
Appears in 1 contract
Samples: Credit Agreement (Envirosource Inc)
Limitation on Fundamental Changes. Merge Enter into any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose Dispose of all or any part substantially all of its propertyProperty or business, except that:
(a) any Restricted Subsidiary of the Borrower may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving corporation) or with or into any Subsidiary Guarantor (provided that (i) such Subsidiary Guarantor shall be the continuing or surviving corporation or (ii) simultaneously with such transaction, the continuing or surviving corporation shall become a Subsidiary Guarantor and the Borrower shall comply with Section 6.10 in connection therewith);
(b) any Restricted Subsidiary of the Borrower may Dispose of any or all of its assets (upon voluntary liquidation or business (including, without limitation, Stockotherwise) to the Borrower or any Person, including, without limitation, New Hillhaven or a Consolidated Restricted Subsidiary for consideration at least equal to the fair market value of such properties, assets or business Guarantor;
(as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding c) any Immaterial Subsidiary of the foregoing Borrower (i) may be merged or consolidated with or into the Borrower or any other Immaterial Subsidiary of the Borrower and (ii) may Dispose of any or all of its assets (upon voluntary liquidation or otherwise) pro rata to its equity holders;
(d) (i) any Foreign Subsidiary of the contraryBorrower may be merged or consolidated with or into any other Foreign Subsidiary of the Borrower; provided that if such merger or consolidation involves any Foreign Borrower, in no event such Foreign Borrower shall be the continuing or surviving corporation and (ii) any Foreign Subsidiary of the Borrower, other than any Foreign Borrower, may New Hillhaven lease, sell Dispose of any or otherwise dispose all of its assets (upon voluntary liquidation or permit otherwise) pro rata to its equity holders;
(e) The Borrower or any Restricted Subsidiary to lease, sell may consummate a Disposition of any other Restricted Subsidiary (excluding any Foreign Borrower) of the Borrower (or otherwise dispose any Disposition of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion substantially all of the proceeds from assets of such sale are sufficientRestricted Subsidiary) otherwise permitted by Section 7.5(d); and
(f) The Borrower or any Restricted Subsidiary may consummate any Investment otherwise permitted by Section 7.8(h) or (m) by merger or consolidation, provided that if (i) such merger or consolidation involves the Borrower, the Borrower is the continuing or surviving corporation, (ii) if such merger or consolidation involves any Foreign Borrower, such Foreign Borrower is the continuing or surviving corporation and are applied directly(iii) if such merger or consolidation involves a Subsidiary Guarantor, such Subsidiary Guarantor is the continuing or surviving corporation except to repay such Indebtednessthe extent the Borrower could make an equivalent investment in a non-Guarantor pursuant to Section 7.8.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with The Borrower will not enter into any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingliquidate, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion of substantially all its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its propertyunits, assets or business other properties, except that:
(including, without limitation, Stocka) to any Subsidiary of the Borrower or any other Person may be merged or consolidated (including by way of liquidation or winding up) with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving entity or the Person formed by or surviving any such merger or consolidation (if other than the Borrower) shall be an entity organized or existing under the laws of the United States or any State thereof (the Borrower or such Person, includingas the case may be, without limitationbeing herein referred to as the “Successor Borrower”), New Hillhaven (ii) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or a Consolidated Subsidiary for consideration at least equal thereto in form and substance reasonably satisfactory to the fair market value Administrative Agent, (iii) no Default or Event of Default is then existing and no Default or Event of Default would result from the consummation of such propertiesmerger or consolidation, assets (iv) the Successor Borrower shall be in compliance, on a pro forma basis after giving effect to such merger or business (consolidation, with the covenants set forth in Section 8.4 as determined by such covenants are recomputed as at the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any last day of the foregoing most recently ended Test Period under each such Section as if such merger or consolidation had occurred on the first day of such Test Period and (v) the Borrower shall have delivered to the contraryAdministrative Agent an officer’s certificate, in form and substance reasonably satisfactory to the Administrative Agent, certifying the compliance referred to in clause (iv) above and stating that such merger or consolidation and such supplement to this Agreement comply with this Agreement and a legal opinion (in form and substance reasonably satisfactory to the Administrative Agent) with respect to the Credit Documents to be delivered, if any, pursuant to clause (ii) above; provided further that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement; and
(b) the Borrower may enter into any merger or consolidation for the purpose of changing its organizational form from a corporation to a limited liability company or from a limited liability company to a corporation; provided that such change has no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless adverse affect on the cash portion rights of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessFinance Parties.
Appears in 1 contract
Limitation on Fundamental Changes. Merge The Borrower will not, and will not permit any of its Restricted Subsidiaries to, enter into any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion of substantially all its business units, assets or other properties, assets except that:
(a) so long as no Event of Default has occurred and business is continuing or would result therefrom, any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that the Borrower shall be the continuing or surviving corporation;
(b) so long as no Event of Default has occurred and is continuing or would result therefrom, any Subsidiary of the Borrower or any other Person (in each case, other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation and if the surviving Person is not already a Guarantor, such Person shall execute a supplement to the Guarantee and the relevant Security Documents in form and substance reasonably satisfactory to the Administrative Agent in order to become a Guarantor and pledgor, mortgagor and grantor, as applicable, thereunder for the benefit of the Secured Parties, and (iii) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any such supplements to any other PersonSecurity Document preserve the enforceability of the Guarantees and the perfection and priority of the Liens under the applicable Security Documents;
(c) the Transactions may be consummated;
(i) any Restricted Subsidiary that is not a Credit Party may convey, except that New Hillhaven or any Subsidiary may sell, lease, sell assign, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or dissolution or otherwise) to the Borrower or any part of its propertyother Restricted Subsidiary or (ii) any Credit Party (other than the Borrower) may convey, assets or business (includingsell, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell assign, transfer or otherwise dispose of any or permit all of its assets (upon voluntary liquidation or dissolution or otherwise) to any other Credit Party;
(e) any Subsidiary to may convey, sell, lease, sell assign, transfer or otherwise dispose of any or all or any part of its propertyassets (upon voluntary liquidation or dissolution or otherwise) to a Credit Party; provided that the consideration for any such disposition by any Person other than a Guarantor shall not exceed the fair value of such assets;
(f) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; and
(g) the Borrower and the Restricted Subsidiaries may consummate a merger, assets dissolution, liquidation, consolidation, investment or business conveyance, sale, lease, assignment or disposition, the purpose of which is to effect an Asset Sale (includingwhich for purposes of this Section 10.3(g), without limitation, Stockwill include any disposition below the dollar threshold set forth in clause (d) encumbered of the definition of “Asset Sale”) permitted by a Lien in favor of NME Section 10.4 or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, investment permitted pursuant to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 10.6.
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Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose Dispose of all or lease substantially all its business units, assets or other properties, except that:
(a) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into the Borrower or the Borrower may Dispose of all or substantially all of its assets or properties; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation where the Borrower is not the continuing or surviving Person, the Borrower, or in connection with a Disposition of all or substantially all of the Borrower’s assets, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the Borrower) or the transferee of such assets or properties shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation, consolidation or Disposition or would result from such consummation of such merger, amalgamation, consolidation or Disposition and (iv) if such merger, amalgamation, consolidation or Disposition involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower (A) each Guarantor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have confirmed by a supplement to the Guarantee that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (B) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation, consolidation or Disposition 170 LPL – Conformed A&R Credit Agreement or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and shall have executed a joinder to the Intercompany Note, (C) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (E) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to the Administrative Agent an opinion of counsel to the effect that such merger, amalgamation, consolidation or Disposition does not violate this Agreement or any other Credit Document, (F) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 and (G) the Successor Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation, consolidation or Disposition, with the covenants set forth in Sections 10.9 and 10.10, as such covenants are recomputed as of the last day of the most recently ended Test Period under such Sections as if such merger, amalgamation, consolidation or Disposition had occurred on the first day of such Test Period; provided further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;
(b) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into any one or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its assets or properties; provided that (i) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving corporation or the transferee of such assets or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation, consolidation or Disposition (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation, consolidation involving one or more Subsidiary Guarantors, a Subsidiary Guarantor shall be the continuing or surviving corporation or the Person formed by or surviving any such merger, amalgamation, consolidation or Disposition (if other than a Subsidiary Guarantor) shall execute a supplement to the Guarantee, the Security Agreement, the Pledge Agreement and any applicable Mortgage, and a joinder to the Intercompany Note, each in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Subsidiary Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note; provided that if such surviving Person is a 100% Non-Guarantor Pledgee, such surviving Person shall not be required to become a Guarantor, pledgor, mortgagor or grantor of Collateral, (iii) no Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition and (iv) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such merger, 171 LPL – Conformed A&R Credit Agreement amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower, (A) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Agreement, (B) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 and (C) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation, consolidation or Disposition, with the covenants set forth in Sections 10.9 and 10.10, as such covenants are recomputed as of the last day of the most recently ended Test Period under such Sections as if such merger, amalgamation, consolidation or Disposition had occurred on the first day of such Test Period;
(c) any Restricted Subsidiary that is not a Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor or into any 100% Non-Guarantor Pledgee, (ii) merge, amalgamate or consolidate with or into any other Restricted Subsidiary which is not a Subsidiary Guarantor; provided that if such Subsidiary Guarantor is not the surviving entity, such merger, amalgamation or consolidation shall be deemed to be an “Investment” and subject to the limitations set forth in Section 10.5 and (iii) sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell license, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, any other Subsidiary Guarantor or any part 100% Non-Guarantor Pledgee;
(e) any Restricted Subsidiary may liquidate or dissolve if (x) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of its propertythe Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Subsidiary Guarantor, any assets or business not otherwise disposed of or transferred in accordance with Section 10.4 or 10.5, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Borrower or another Subsidiary Guarantor after giving effect to such liquidation or dissolution;
(including, without limitation, Stockf) to any Person, including, without limitation, New Hillhaven the extent that no Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesdisposition, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 (as determined by the Board of Directors of New Hillhaven in good faithother than 10.4(i), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtedness).
Appears in 1 contract
Limitation on Fundamental Changes. Merge or (a) The Borrower will not consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, any --------------------------------- other Person, unless:
(i) the resulting, surviving or transferee Person (except as the “Successor Company”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Borrower) will expressly permitted assume all the obligations of the Borrower under this Agreement by Section 4(eexecuting and delivering to the Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(ii) hereof) unless New Hillhaven is the surviving corporation and, immediately after giving effect to such merger transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or consolidationany Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default has shall have occurred and is be continuing, or permit any Subsidiary to merge or consolidate with any other Person ;
(except as expressly permitted by Section 4(eiii) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) immediately after giving effect to such merger or consolidationtransaction, no Default or Event either (A) the Borrower (or, if applicable, the Successor Company with respect thereto) could Incur at least $1.00 of Default has occurred and is continuing, or liquidate or dissolve itself (or suffer any liquidation or dissolutionadditional Indebtedness pursuant to subsection 7.1(a), or dispose (B) the Consolidated Coverage Ratio of the Borrower (or, if applicable, the Successor Company with respect thereto) would equal or lease or sell, or permit exceed the Consolidated Coverage Ratio of the Borrower immediately prior to giving effect to such transaction;
(iv) each applicable Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guarantee in connection with such transaction and (y) any party to dispose any such consolidation or merger) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guarantee under the Guarantee and Collateral Agreement (other than any Subsidiary Guarantee that will be discharged or terminated in connection with such transaction); and
(v) The Borrower shall have delivered to the Administrative Agent a certificate signed by a Responsible Officer and a legal opinion each to the effect that such consolidation, merger or transfer complies with the provisions described in this paragraph, provided that (x) in giving such opinion such counsel may rely on such certificate of such Responsible Officer as to compliance with the foregoing clauses (ii) and (iii) of subsection 7.3(a) and as to any matters of fact, and (y) no such legal opinion will be required for a consolidation, merger or lease or selltransfer described in clause (d) of this subsection 7.3.
(b) Any Indebtedness that becomes an obligation of the Borrower (or, all if applicable, the Successor Company with respect thereto) or any substantial portion Restricted Subsidiary (or that is deemed to be Incurred by any Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of its propertiesany such transaction undertaken in compliance with this subsection 7.3, assets and business any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with subsection 7.1.
(c) TheUpon any other Persontransaction involving the Borrower in accordance with subsection 7.3(a) in which the Borrower is not the Successor Company, the Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement, and thereafter the predecessor Borrower shall be relieved of all obligations and covenants under this Agreement, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose the predecessor Borrower in the case of a lease of all or substantially all its assets will not be released from the obligation to pay the principal of and interest on the Loans.
(d) Subsection 7.3(a) will not apply to any transaction in which the Borrower consolidates or merges with or into or transfers all or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of reincorporating or reorganizing the Borrower in another jurisdiction (so long as such jurisdiction is the United States of America, any State thereof or the District of Columbia) or changing its legal structure to a corporation or other entity or (y) a Restricted Subsidiary of the Borrower so long as all assets of the Borrower and the Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such Restricted Subsidiary) are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof. Subsection 7.3(a) will not apply to (1) any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets Borrower or business (as determined by 2) the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessTransactions.
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Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is Sections 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its business units, assets or other properties, except that:
(a) any substantial portion Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation with or into the Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the Borrower) shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, and (iv) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) the Successor Borrower shall be in compliance, on a pro forma basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period under such Section as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period, (B) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (C) each Subsidiary that is a Credit Party, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) the Borrower shall have delivered to the Administrative Agent a notice of such merger, amalgamation or consolidation prior thereto or contemporaneously therewith and any such supplements to any Credit Documents reasonably requested by the Administrative Agent necessary to reaffirm or preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (F) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that the Credit Documents remain enforceable against the Successor Borrower and (G) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;
(b) any Subsidiary of the Borrower or any other Person (other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee, the Pledge Agreement and any applicable Mortgage, each in form and substance reasonably satisfactory to the Administrative Agent in order for the surviving Person to become a Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties, (iii) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation and (iv) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, (A) the Borrower shall be in compliance, on a pro forma basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period, (B) the Borrower shall have delivered to the Administrative Agent a notice of such merger, amalgamation or consolidation prior thereto or contemporaneously therewith and any such supplements to any Credit Documents reasonably requested by the Administrative Agent necessary to reaffirm or preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5;
(c) any Restricted Subsidiary that is not a Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its propertiesassets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor, (ii) merge, amalgamate or consolidate with or into any other Subsidiary which is not a Guarantor or Dispose of any or all of its assets and business (upon voluntary liquidation or otherwise) to any other PersonSubsidiary that is not a Guarantor; provided that if such Subsidiary Guarantor is not the surviving entity, except that New Hillhaven such merger, amalgamation or consolidation shall be deemed to be, and any such Disposition shall be, an “Investment” and subject to the limitations set forth in Section 10.5 and (iii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor;
(e) any Restricted Subsidiary may leaseliquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, sell or otherwise dispose of all or any part of its property, assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, or in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution; and
(including, without limitation, Stockf) to any Personthe extent that no Borrowing Base Deficiency, including, without limitation, New Hillhaven Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesDisposition or Investment, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business (as determined by the Board of Directors of New Hillhaven Disposition in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit which any Subsidiary (but not the Borrower) is merged, dissolved, liquidated, consolidated or Disposed of, the purpose of which is to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by effect a Lien in favor of NME Disposition permitted pursuant to Section 10.4 or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, Investment permitted pursuant to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 10.5.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is Sections 11.4 or 11.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its business units, assets or other properties, except that:
(a) any substantial portion Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation with or into the Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the Borrower) shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, and (iv) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) the Successor Borrower shall be in compliance, on a pro forma basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period under such Section as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period, (B) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (C) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (F) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Credit Document; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement and (G) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 11.5;
(b) any Subsidiary of the Borrower or any other Person (other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Subsidiaries, (A) a Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Subsidiary) to become a Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee, the Security Agreement, the Pledge Agreement and any applicable Mortgage, each in form and substance reasonably satisfactory to the Administrative Agent in order for the surviving Person to become a Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties, (iii) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation and (iv) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower, (A) the Borrower shall be in compliance, on a pro forma basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period under such Section as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period, (B) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Agreement and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 11.5;
(c) any Subsidiary that is not a Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary and (ii) Dispose of any or all of its propertiesassets (upon voluntary liquidation or otherwise) to the Borrower, assets and business to a Guarantor or any other PersonSubsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, except that New Hillhaven amalgamate or consolidate with or into any other Subsidiary Guarantor and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor;
(e) any Subsidiary may leaseliquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Subsidiary is a Credit Party, sell or otherwise dispose of all or any part of its property, assets or business of such Subsidiary not otherwise Disposed of or transferred in accordance with Section 11.4 or 11.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution; and
(including, without limitation, Stockf) to any Personthe extent that no Borrowing Base Deficiency, including, without limitation, New Hillhaven Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesDisposition, assets the Borrower and the Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business (as determined by Disposition, the Board purpose of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing which is to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary effect a Disposition permitted pursuant to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 11.4.
Appears in 1 contract
Limitation on Fundamental Changes. Merge The Borrower will not, and will not permit any of the Restricted Subsidiaries to, consummate any merger, division, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or any substantial portion of substantially all its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its propertyunits, assets or business other properties, except that:
(includinga) any Subsidiary of the Borrower or any other Person may be merged, without limitationamalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person (and the Borrower shall remain an entity organized or existing under the laws of the United States, Stockany state thereof or the District of Columbia) or, in the case of a merger, amalgamation or consolidation with or into the Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Event of Default or Loan Limit Deficiency has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, (iv) the Borrower’s Consolidated Total Net Leverage Ratio on a pro forma basis shall not exceed that of the Borrower immediately prior to the consummation of such merger, amalgamation or consolidation, (v) such merger, amalgamation or consolidation does not adversely affect the Collateral, taken as a whole, in any material respect, (vi) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (B) each Subsidiary Guarantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (C) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents and as to the matters of the nature referred to in Section 6(c), (E) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Credit Document and as to such other matters regarding the Successor Borrower and the Credit Documents as the Administrative Agent or its counsel may reasonably request; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement and (F) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; and (vii) the Administrative Agent shall have received at least five (5) days prior to the date of such merger, amalgamation or consolidation all documentation and other information about such Successor Borrower, Subsidiary or other Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Administrative Agent;
(b) any Subsidiary of the Borrower or any other Person (other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any Personmerger, includingamalgamation or consolidation involving one or more Guarantors, without limitationunless otherwise permitted by Section 10.5, New Hillhaven a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee, the Collateral Agreement and any applicable Mortgage, and a joinder to the Intercompany Note, in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Guarantor, and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note, (iii) no Default, Event of Default or Loan Limit Deficiency has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation, (iv) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, (A) the Borrower’s Consolidated Subsidiary for consideration Total Net Leverage Ratio on a pro forma basis shall not exceed that of the Borrower immediately prior to the consummation of such merger, amalgamation or consolidation, (B) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Collateral Agreement and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; and (v) the Administrative Agent shall have received at least equal five (5) days prior to the fair market value date of such propertiesmerger, amalgamation or consolidation all documentation and other information about such Subsidiary or other Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Administrative Agent or any Lender;
(c) any Restricted Subsidiary that is not a Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Guarantor and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor;
(e) any Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, any assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Guarantor after giving effect to such liquidation or dissolution;
(f) the Borrower and its Restricted Subsidiaries may consummate the Transactions;
(g) the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, amalgamation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 or an Investment permitted by Section 10.5; and
(h) a Credit Party may consummate any merger the sole purpose of which is to reincorporate or reorganize such Credit Party in another jurisdiction in the United States as determined by long as such merger does not adversely affect the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any value of the foregoing to Collateral in any material respect and the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of surviving entity assumes all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion Obligations of the proceeds from such sale are sufficient, applicable Credit Party under the Credit Documents by delivering the information required by Section 9.10 and are applied directly, to repay such Indebtednessdelivers any applicable information required by Section 9.1(m).
Appears in 1 contract
Samples: Credit Agreement (Infinity Natural Resources, Inc.)
Limitation on Fundamental Changes. Merge or consolidate with The Borrower will not enter into any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingliquidate, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion of substantially all its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its propertyunits, assets or business other properties, except that:
(includinga) any Subsidiary of the Borrower or any other Person may be merged or consolidated (including by way of liquidation or winding up) with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving entity or, without limitationso long as after giving effect to such merger or consolidation such Person’s debt rating shall be BBB- or higher from Xxxxx’x and Baa1 or higher from S&P, Stockas determined pursuant to the definition of “Applicable Margin”, the Person formed by or surviving any such merger or consolidation (if other than the Borrower) to shall be an entity organized or existing under the laws of the United States or any State thereof, (the Borrower or Person, includingas the case may be, without limitationbeing herein referred to as the “Successor Borrower”), New Hillhaven or (ii) such Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement pursuant to a Consolidated Subsidiary for consideration at least equal supplement hereto in form and substance reasonably satisfactory to the fair market value Administrative Agent, (iii) no Default or Event of Default is then existing and no Default or Event of Default would result from the consummation of such propertiesmerger or consolidation, assets (iv) the Borrower shall be in compliance, on a pro forma basis after giving effect to such merger or business (consolidation, with the covenants set forth in Section 9.4 as determined by such covenants are recomputed as at the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any last day of the foregoing most recently ended Test Period under each such Section as if such merger or consolidation had occurred on the first day of such Test Period, and (v) the Borrower shall have delivered to the contraryAdministrative Agent an officer’s certificate, in form and substance reasonably satisfactory to the Administrative Agent, certifying the compliance referred to in clause (iv) above and stating that such merger or consolidation and such supplement to this Agreement comply with this Agreement and a legal opinion (in form and substance reasonably satisfactory to the Administrative Agent) with respect to this Agreement to be delivered, if any, pursuant to clause (ii) above; provided further that if the foregoing are satisfied, such Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement; and
(b) the Borrower may enter into any merger or consolidation for the purpose of changing its organizational form from a corporation to a limited liability company or from a limited liability company to a corporation; provided that such change has no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless adverse affect on the cash portion rights of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessFinance Parties.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion of substantially all its business units, assets or other properties, assets and business to except that:
(a) any Restricted Subsidiary of the Borrower may be merged or consolidated with or into the Borrower, provided that (i) the Borrower shall be the continuing or surviving corporation or the Person formed by or surviving any such merger or consolidation (if other than the Borrower) shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia (the Borrower or such Person, except as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Default or Event of Default would result from the consummation of such merger or consolidation and (iv) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that New Hillhaven such merger or consolidation complies with this Agreement; provided further that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;
(b) any Restricted Subsidiary of the Borrower may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower, provided that (i) a Restricted Subsidiary shall be the continuing or surviving corporation or the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving corporation or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee Agreement, the Pledge Agreement and the Security Agreement and shall execute a Mortgage in form and substance reasonably satisfactory to the Administrative Agent in order to become a Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties, (iii) no Default or Event of Default would result from the consummation of such merger, amalgamation or consolidation, (iv) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation complies with this Agreement;
(c) any Restricted Subsidiary that is not a Guarantor may sell, lease, sell transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor, or any part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated other Restricted Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contraryBorrower;
(d) any Guarantor may sell, in no event may New Hillhaven lease, sell transfer or otherwise dispose of any or permit any Subsidiary all of its assets (upon voluntary liquidation or otherwise) to lease, sell or otherwise dispose of all the Borrower or any part other Guarantor;
(e) any Restricted Subsidiary may liquidate or dissolve if (x) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of its propertythe Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Credit Party, any assets or business (includingnot otherwise disposed of or transferred in accordance with Section 10.4 or 10.5, without limitationor, Stock) encumbered by a Lien in favor the case of NME or an Affiliate of NMEany such business, discontinued, shall be transferred to, or by otherwise owned or conducted by, another Credit Party after giving effect to such liquidation or dissolution; and
(f) any merger, dissolution, liquidation, consolidation or disposition of a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Restricted Subsidiary, unless the cash portion purpose of the proceeds from such sale are sufficient, and are applied directly, which is to repay such Indebtednesseffect (i) a disposition permitted by Section 10.4 (other than Section 10.4(d)) shall be permitted or (ii) any Investment permitted by Section 10.5 shall be permitted.
Appears in 1 contract
Samples: Credit Agreement (Accellent Inc)
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4, 10.5 or 10.6, the surviving corporation andBorrower will not and will not permit any of the Restricted Subsidiaries to, after giving effect to such merger consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose Dispose of all or lease substantially all of its business units, assets or sellother properties, or permit except that:
(a) any Subsidiary to dispose of the Borrower or lease any other Person (other than Holdings) may be merged, amalgamated or sell, consolidated with or into the Borrower or the Borrower may Dispose of all or any substantial portion substantially all of its propertiesbusiness units, assets and business to any other properties; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation where the Borrower is not the continuing or surviving Person, except that New Hillhaven the Person formed by or surviving any Subsidiary may leasesuch merger, sell amalgamation or otherwise dispose consolidation (if other than the Borrower) or in connection with a Disposition of all or substantially all of the Borrower’s assets, the transferee of such assets or properties, shall, in each case, be an entity organized or existing under the laws of the United States, any part state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (iii) if such merger, amalgamation, consolidation or Disposition involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation, consolidation, or Disposition, is not a Restricted Subsidiary of the Borrower (A) subject to Section 1.10, no Event of Default under Section 11.1 or Section 11.5 has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition, (B) each Guarantor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have confirmed by a supplement to the Guarantee that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (C) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection of the Liens on the Collateral under the Security Documents, (F) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to the Administrative Agent an opinion of counsel to the effect that such merger, amalgamation, consolidation or Disposition does not breach or result in a default under this Agreement or any other Credit Document and (G) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 or Section 10.6; provided, further, that, if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement (provided, further, that, in the event of a Disposition of all or substantially all of the Borrower’s assets or property to a Successor Borrower (which is not the Borrower) as set forth above and notwithstanding anything to the contrary in Section 13.6(a), if the original Borrower retains any assets or property other than immaterial assets or property after such Disposition, such original Borrower shall remain obligated as a co-Borrower along with the Successor Borrower hereunder);
(b) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into any one or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its propertybusiness units, assets and other properties; provided that, (i) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or the transferee of such assets or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation, consolidation or the transferee of such assets and properties (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Subsidiary Guarantors, if the surviving Person formed by or surviving such merger, amalgamation or consolidation or the transferee of such assets and properties is a Non-Credit Party, then any Indebtedness of any Subsidiary Guarantor assumed by such surviving Person or the transferee of such assets and properties shall be deemed an Incurrence of Indebtedness upon completion of such transaction and such transaction shall be permitted only if such Incurrence is permitted under Section 10.1 of this Agreement (without giving effect to Section 10.1(j) and (iii) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower, (A) subject to Section 1.10, no Event of Default under Section 11.1 or Section 11.5 has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition, (B) the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer stating that such merger, amalgamation, consolidation or Disposition and such supplements to any Credit Document preserve the enforceability of the Guarantees and the perfection and priority of the Liens under the Security Documents and (C) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.4, Section 10.4(d) or Section 10.6;
(c) any Restricted Subsidiary may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Restricted Subsidiary of the Borrower;
(d) the Transactions may be consummated;
(e) any Restricted Subsidiary may liquidate or dissolve or change its legal form if (x) the Borrower determines in good faith that such liquidation or dissolution or change of legal form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (y) any assets or business not otherwise Disposed of or transferred in accordance with Section 10.4, Section 10.4(d) or Section 10.6, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Borrower or another Restricted Subsidiary after giving effect to such liquidation or dissolution or change of legal form; and
(includingf) the Borrower and the Restricted Subsidiaries may consummate a merger, without limitationdissolution, Stockliquidation, consolidation, amalgamation or Disposition, the purpose of which is to (i) effect a Disposition permitted pursuant to Section 10.4 (other than 10.4(h)), (ii) reorganize or reincorporate any Personsuch Person in the United States, includingany state thereof, without limitationthe District of Columbia or any territory thereof, New Hillhaven (iii) effect any Holdings Termination Event in accordance with Section 1.11(h) or (iv) convert into a Consolidated Subsidiary for consideration at least equal to Person organized or existing under the fair market value laws of the jurisdiction of organization of such propertiesPerson or another jurisdiction of the United States, assets any state thereof, the District of Columbia or business (as determined by the Board of Directors of New Hillhaven in good faith)any territory thereof; provided that, provided -------- that notwithstanding with respect to any of the foregoing to actions described in clauses (ii) and (iv) above, the contrary, in no event may New Hillhaven lease, sell Borrower or otherwise dispose of or permit any applicable Restricted Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion shall have complied with Section 4.2 of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSecurity Agreement.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Grocery Outlet Holding Corp.)
Limitation on Fundamental Changes. Merge Enter into any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion substantially all of its propertiesproperty, business or assets, except:
(a) any Subsidiary of the Parent Borrower may be merged, consolidated or amalgamated with or into the Parent Borrower (provided that the Parent Borrower shall be the continuing or surviving corporation) or with or into any one or more Wholly Owned Subsidiaries of the Parent Borrower (provided that the Wholly Owned Subsidiary or Subsidiaries of the Parent Borrower shall be the continuing or surviving entity, and if either such Subsidiary is HERC, HERC shall be the continuing or surviving entity (unless merged into the Parent Borrower)); provided that in any case where the Subsidiary that is the non-surviving entity is a North American Subsidiary and such Subsidiary’s assets and business to include real property owned by such North American Subsidiary or Voting Stock of any other PersonNorth American Subsidiary, except or if such merger or consolidation constitutes (alone or together with any related merger or consolidation by any North American Subsidiary) a transfer of all or substantially all of the assets of the Domestic Subsidiaries or Canadian Subsidiaries that New Hillhaven are Loan Parties, (1) the continuing or surviving entity shall be a Loan Party, or (2) such merger, consolidation or amalgamation shall be in the ordinary course of business, or (3) if the continuing or surviving entity is not a Loan Party, the Net Cash Proceeds of all such assets transferred by a North American Subsidiary pursuant to this clause (3) do not exceed $20,000,000 in any fiscal year, or (4) at the time of such merger, consolidation or amalgamation, the Payment Conditions are satisfied;
(b) any Subsidiary of the Parent Borrower may sell, lease, sell transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or any part Wholly Owned Subsidiary of its propertythe Parent Borrower (and, assets or business (includingin the case of a non-Wholly Owned Subsidiary, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal may be liquidated to the fair market value extent the Parent Borrower or any Wholly Owned Subsidiary which is a direct parent of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any non-Wholly Owned Subsidiary receives a pro rata distribution of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit assets thereof); provided that if any Subsidiary to lease, sell or otherwise dispose Borrower so disposes of all or any part substantially all of its propertyassets, (i) in the case of HERC, such sale, lease, transfer or other disposition of all or substantially all of its assets or business may be made only to the Parent Borrower and (includingii) in all other cases, without limitationeither (A) such Borrower shall, Stocksimultaneously with such disposition, (1) encumbered repay in full all outstanding Loans made (x) to it and (y) against assets contributed by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NMEit to the Borrowing Base, to any Personother Borrower and (2) terminate its right to borrow hereunder or (B) the transferee of such assets shall be a Borrower; provided, includingfurther, without limitation, New Hillhaven that (x) if the Subsidiary that disposes of any or all of its assets is a Consolidated North American Subsidiary and such disposition includes real property owned by such North American Subsidiary or Voting Stock of any other North American Subsidiary, unless the cash portion or constitutes (alone or together with any related disposition of assets by any North American Subsidiary) all or substantially all of the proceeds from assets of the Domestic Subsidiaries or Canadian Subsidiaries that are Loan Parties, (1) the transferee of such sale assets shall be a Loan Party, or (2) such disposition shall be in the ordinary course of business, or (3) if the transferee of such assets is not a Loan Party, the Net Cash Proceeds of all such assets transferred by a North American Subsidiary pursuant to this clause (3) do not exceed $20,000,000 in any fiscal year, or (4) at the time of such disposition, the Payment Conditions are sufficient, satisfied;
(c) pursuant to the Merger and are applied directly, to repay such Indebtednessthe Canadian Reorganization; and
(d) as expressly permitted by subsection 8.6.
Appears in 1 contract
Samples: Credit Agreement (Hertz Corp)
Limitation on Fundamental Changes. Merge The Borrower will not, and will not permit any of the Restricted Subsidiaries to, consummate any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or any substantial portion of substantially all its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its propertyunits, assets or business other properties, except that:
(includinga) any Subsidiary of the Borrower or any other Person may be merged, without limitationamalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person (and the Borrower shall remain an entity organized or existing under the laws of the United States, Stockany state thereof or the District of Columbia) or, in the case of a merger, amalgamation or consolidation with or into the Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Default, Event of Default or Borrowing Base Deficiency has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, (iv) the Successor Borrower shall be in compliance with the Financial Performance Covenants on a Pro Forma Basis, (v) such merger, amalgamation or consolidation does not adversely affect the Collateral in any material respect, (vi) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (B) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (C) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents and as to the matters of the nature referred to in Section 6(c), (E) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Credit Document and as to such other matters regarding the Successor Borrower and the Credit Documents as the Administrative Agent or its counsel may reasonably request; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement and (F) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; (vii) the Administrative Agent shall have received at least five (5) days prior to the date of such merger, amalgamation or consolidation all documentation and other information about such Subsidiary or other Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Administrative Agent; and (viii) such Subsidiary or other Person shall have executed a customary joinder to any then-existing Junior Lien Intercreditor Agreement;
(b) any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any Personmerger, includingamalgamation or consolidation involving one or more Guarantors, without limitationunless otherwise permitted by Section 10.5, New Hillhaven a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Consolidated Guarantor) shall execute a supplement to the Guarantee, the Collateral Agreement and any applicable Mortgage, and a joinder to the Intercompany Note and any then-existing Junior Lien Intercreditor Agreement, in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Guarantor, and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note and any then-existing Junior Lien Intercreditor Agreement, (iii) no Default, Event of Default or Borrowing Base Deficiency has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation, (iv) if such merger, amalgamation or consolidation involves a Subsidiary for consideration and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, (A) the Borrower shall be in compliance with the Financial Performance Covenants on a Pro Forma Basis immediately after giving effect to such merger, amalgamation or consolidation, (B) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Collateral Agreement and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; and (v) the Administrative Agent shall have received at least equal five (5) days prior to the fair market value date of such propertiesmerger, amalgamation or consolidation all documentation and other information about such Subsidiary or other Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Administrative Agent or any Lender;
(c) any Restricted Subsidiary that is not a Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor, (ii) [reserved] and (iii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor;
(e) any Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, any assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution;
(f) the Borrower and its Restricted Subsidiaries may consummate the Transactions;
(g) the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, amalgamation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 or an Investment permitted by Section 10.5; and
(h) a Credit Party may consummate any merger the sole purpose of which is to reincorporate or reorganize such Credit Party in another jurisdiction in the United States as determined by long as such merger does not adversely affect the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any value of the foregoing to Collateral in any material respect and the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of surviving entity assumes all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion Obligations of the proceeds from such sale are sufficient, applicable Credit Party under the Credit Documents by delivering the information required by Section 9.11 and are applied directly, to repay such Indebtednessdelivers any applicable information required by Section 9.1(o).
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its business units, assets or other properties, except that:
(a) any substantial portion Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation with or into the Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the Borrower) shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, and (iv) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (B) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (C) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (E) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Credit Document; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement and (F) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5;
(b) any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee, the Collateral Agreement and any applicable Mortgage, each in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Guarantor, and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties, (iii) no Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation and (iv) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, (A) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Collateral Agreement and (B) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5;
(c) any Restricted Subsidiary that is not a Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its propertiesassets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor, (ii) merge, amalgamate or consolidate with or into any other Subsidiary which is not a Guarantor or Dispose of any or all of its assets and business (upon voluntary liquidation or otherwise) to any other PersonSubsidiary that is not a Guarantor; provided that if such Subsidiary Guarantor is not the surviving entity, except that New Hillhaven such merger, amalgamation or consolidation shall be deemed to be, and any such Disposition shall be, (A) an “Investment” and subject to the limitations set forth in Section 10.5 and (B) a “Disposition” and subject to the limitations set forth in Section 10.4; and (iii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor;
(e) any Restricted Subsidiary may leaseliquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, sell or otherwise dispose of all or any part of its property, assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution;
(including, without limitation, Stockf) [reserved]; and
(g) to any Person, including, without limitation, New Hillhaven the extent that no Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesDisposition, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business (as determined by Disposition, the Board purpose of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing which is to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary effect a Disposition permitted pursuant to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 10.4.
Appears in 1 contract
Samples: Senior Secured Superpriority Debtor in Possession Credit Agreement (EP Energy LLC)
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is Sections 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its assets, except that:
(a) the Borrower may merge, consolidate or amalgamate with any substantial portion Person (including any Subsidiary), provided that (i) the Borrower shall be the surviving, continuing or resulting entity or, if the foregoing is not the case, the surviving, continuing, or resulting entity shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Borrowing Base Deficiency (during a Borrowing Base Trigger Period), Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, and (iv) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) the Successor Borrower shall be in compliance, on a Pro Forma Basis with the Financial Performance Covenants, (B) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation (or unless the Successor Borrower is the Borrower) shall have confirmed in a writing in form and substance acceptable to the Administrative Agent that its propertiesGuarantee shall apply to the Successor Borrower’s obligations under this Agreement (and, assets and business during a Borrowing Base Trigger Period, shall have confirmed that its obligations under the Security Documents shall apply to the Successor Borrower’s obligations under this Agreement), (C) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other PersonCredit Document and (E) such merger, except amalgamation, or consolidation shall not occur during an Interim Covenant Period; provided, further, that New Hillhaven if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;
(b) any Guarantor may merge, amalgamate or consolidate with (i) any Credit Party (provided that if the Borrower is involved in the case of any such merger, amalgamation or consolidation, the provisions of clause (a) above shall govern) or (ii) any other Person (including any other Subsidiary of the Borrower); provided that (A) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (1) a Restricted Subsidiary shall be the continuing or surviving Person or (2) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (B) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee and any applicable Mortgage, each in form and substance reasonably satisfactory to the Administrative Agent in order for the surviving Person to become a Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties, (C) no Borrowing Base Deficiency (during a Borrowing Base Trigger Period), Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation, and (D) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, (x) such merger, amalgamation or consolidation shall not occur during an Interim Covenant Period and (y) the Borrower shall be in compliance, on a Pro Forma Basis with the Financial Performance Covenants;
(c) any Restricted Subsidiary that is not a Guarantor may leasemerge, sell amalgamate or otherwise dispose consolidate with, or Dispose of all or any part substantially all of its propertyassets to, the Borrower or any other Restricted Subsidiary (provided that if the Borrower is involved in the case of any such merger, amalgamation or consolidation, the provisions of clause (a) above shall govern);
(d) any Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, any assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution; and
(including, without limitation, Stocke) to any Personthe extent that no Borrowing Base Deficiency (during a Borrowing Base Trigger Period), including, without limitation, New Hillhaven Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesDisposition, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business (as determined by Disposition, the Board purpose of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing which is to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary effect a Disposition permitted pursuant to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 10.4.
Appears in 1 contract
Limitation on Fundamental Changes. Merge The Borrower will not, and will not permit any of the Restricted Subsidiaries to, consummate any merger, division, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its business units, assets or other properties, except that:
(a) any substantial portion Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person (and the Borrower shall remain an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia) or, in the case of a merger, amalgamation or consolidation with or into the Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Default, Event of Default or, if prior to the Discharge of Priority Lien Obligations, Borrowing Base Deficiency has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, (iv) the Borrower’s Consolidated Secured Net Leverage Ratio on a pro forma basis shall not exceed that of the Borrower immediately prior to the consummation of such merger, amalgamation or consolidation, (v) such merger, amalgamation or consolidation does not adversely affect the Collateral, taken as a whole, in any material respect, (vi) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (B) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (C) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents and as to the matters of the nature referred to in Section 6(c), (E) if reasonably requested by the Administrative Agent (acting at the direction of the Majority Lenders), an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Credit Document and as to such other matters regarding the Successor Borrower and the Credit Documents as the Majority Lenders or their counsel may reasonably request; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement and (F) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; (vii) the Administrative Agent shall have received at least five (5) days prior to the date of such merger, amalgamation or consolidation all documentation and other information about such Successor Borrower, Subsidiary or other Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Administrative Agent; and (viii) such Subsidiary or other Person shall have executed a customary joinder to the First Lien/Second Lien Intercreditor Agreement and any then-existing Junior Lien Intercreditor Agreement;
(b) any Subsidiary of the Borrower or any other Person (other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, unless otherwise permitted by Section 10.5, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee, the Collateral Agreement and any applicable Mortgage, and a joinder to the Intercompany Note and the First Lien/Second Lien Intercreditor Agreement and any other then-existing Junior Lien Intercreditor Agreement, in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Guarantor, and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note, the First Lien/Second Lien Intercreditor Agreement and any then-existing Junior Lien Intercreditor Agreement, (iii) no Default, Event of Default or, if prior to the Discharge of Priority Lien Obligations, Borrowing Base Deficiency has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation, (iv) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, (A) the Borrower’s Consolidated Secured Net Leverage Ratio on a pro forma basis shall not exceed that of the Borrower immediately prior to the consummation of such merger, amalgamation or consolidation, (B) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Collateral Agreement and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; and (v) the Administrative Agent shall have received at least five (5) days prior to the date of such merger, amalgamation or consolidation all documentation and other information about such Subsidiary or other Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Administrative Agent or any Lender;
(c) any Restricted Subsidiary that is not a Grantor (other than EHP Topco and EHP Midco) may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Grantor (other than EHP Topco and EHP Midco) and (ii) Dispose of any or all of its propertiesassets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower (other than to the EHP Entities prior to the EHP Discharge Date or to the Production Sharing Entities);
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any Guarantor;
(e) any Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, any assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Guarantor after giving effect to such liquidation or dissolution; provided, that no Production Sharing Contract shall be Disposed of or transferred to the Borrower or a Guarantor;
(f) the Borrower and its Restricted Subsidiaries may consummate the Transactions;
(g) the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, amalgamation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 or an Investment permitted by Section 10.5;
(h) a Credit Party may consummate any merger the sole purpose of which is to reincorporate or reorganize such Credit Party in another jurisdiction in the United States as long as such merger does not adversely affect the value of the Collateral in any material respect and the surviving entity assumes all Obligations of the applicable Credit Party under the Credit Documents by delivering the information required by Section 9.11 and delivers any applicable information required by Section 9.1(o); and
(i) any Production Sharing Entity may (i) merge, amalgamate or consolidate with or into any other Production Sharing Entity and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessProduction Sharing Entity.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its business units, assets or other properties, except that:
(a) any substantial portion Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person (and the Borrower shall remain an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia) or, in the case of a merger, amalgamation or consolidation with or into the Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Event of Default has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, (iv) such merger, amalgamation or consolidation does not adversely affect the Collateral in any material respect, (v) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (B) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (C) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents and as to the matters of the nature referred to in Section 6(c), (vi) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Credit Document and as to such other matters regarding the Successor Borrower and the Credit Documents as the Administrative Agent or its counsel may reasonably request; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement and (F) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; (vi) the Administrative Agent shall have received at least five (5) days prior to the date of such merger, amalgamation or consolidation all documentation and other information about such Subsidiary or other Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Administrative Agent; and (vii) such Subsidiary or other Person shall have executed a customary joinder to the Intercreditor Agreement;
(b) any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, unless otherwise permitted by Section 10.5, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee, the Collateral Agreement and any applicable Mortgage, and a joinder to the Intercompany Note and the Intercreditor Agreement, in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Guarantor, and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note, (iii) no Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation, (iv) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, (A) the Borrower shall be in compliance with Section 10.11 on a Pro Forma Basis immediately after giving effect to such merger, amalgamation or consolidation, (B) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Collateral Agreement and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; and (v) the Administrative Agent shall have received at least five (5) days prior to the date of such merger, amalgamation or consolidation all documentation and other information about such Subsidiary or other Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Administrative Agent or any Lender;
(c) any Restricted Subsidiary that is not a Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its propertiesassets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor, (ii) merge, amalgamate or consolidate with or into any other Subsidiary which is not a Guarantor or Dispose of any or all of its assets and business (upon voluntary liquidation or otherwise) to any other PersonSubsidiary that is not a Guarantor so long as after giving effect to such transaction the Collateral Coverage Minimum would be satisfied and the Borrower shall be in compliance with Section 9.11 on a Pro Forma Basis; provided that if such Subsidiary Guarantor is not the surviving entity, except that New Hillhaven such merger, amalgamation or consolidation shall be deemed to be, and any such Disposition shall be, an “Investment” and subject to the limitations set forth in Section 10.5 and (iii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor;
(e) any Restricted Subsidiary may leaseliquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, sell or otherwise dispose of all or any part of its property, assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution;
(includingf) the Borrower and its Restricted Subsidiaries may consummate the Transactions;
(g) the Borrower and the Restricted Subsidiaries may consummate a merger, without limitationdissolution, Stockliquidation, amalgamation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 or an Investment permitted by Section 10.5; and
(h) any merger the sole purpose of which is to any Person, including, without limitation, New Hillhaven reincorporate or reorganize a Consolidated Subsidiary for consideration at least equal to Credit Party in another jurisdiction in the fair market United States shall be permitted as long as such merger does not adversely affect the value of such properties, assets or business (as determined the Collateral in any material respect and the surviving entity assumes all Obligations of the applicable Credit Parties under the Credit Documents and delivers any applicable information requested by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all Administrative Agent or any part of its propertyLender under applicable “know your customer” and anti-money laundering rules and regulations, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless including the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessPatriot Act.
Appears in 1 contract
Samples: Credit Agreement (Vine Energy Inc.)
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is Sections 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its business units, assets or other properties, except that:
(a) any substantial portion Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation with or into the Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the Borrower) shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, and (iv) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) the Successor Borrower shall be in compliance, on a pro forma basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period under such Section as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period, (B) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (C) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (F) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Credit Document; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement and (G) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5;
(b) any Subsidiary of the Borrower or any other Person (other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Subsidiaries, (A) a Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Subsidiary) to become a Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee, the Pledge Agreement and any applicable Mortgage, each in form and substance reasonably satisfactory to the Administrative Agent in order for the surviving Person to become a Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties, (iii) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation and (iv) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower, (A) the Borrower shall be in compliance, on a pro forma basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period under such Section as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period, (B) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5;
(c) any Subsidiary that is not a Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary and (ii) Dispose of any or all of its propertiesassets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor, (ii) merge, amalgamate or consolidate with or into any other Subsidiary which is not a Guarantor or Dispose of any or all of its assets and business (upon voluntary liquidation or otherwise) to any other PersonSubsidiary that is not a Guarantor; provided that if such Subsidiary Guarantor is not the surviving entity, except that New Hillhaven such merger, amalgamation or consolidation shall be deemed to be, and any such Disposition shall be, an “Investment” and subject to the limitations set forth in Section 10.5 and (iii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor;
(e) any Subsidiary may leaseliquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Subsidiary is a Credit Party, sell or otherwise dispose of all or any part of its property, assets or business of such Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution; and
(including, without limitation, Stockf) to any Personthe extent that no Borrowing Base Deficiency, including, without limitation, New Hillhaven Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesDisposition, assets the Borrower and the Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business (as determined by Disposition, the Board purpose of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing which is to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary effect a Disposition permitted pursuant to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 10.4.
Appears in 1 contract
Limitation on Fundamental Changes. Merge Acquisitions or -------------------------------------------------- Dispositions. No Company shall, directly or indirectly, in a single transaction ------------ or series of transactions, (1) merge, consolidate or amalgamate with or into any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingPerson, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell(2) effect any Acquisition, or permit (3) effect any Disposition (or agree to do any of the foregoing). Notwithstanding the foregoing provisions of this Section 9.06, each of the following shall be permitted:
(a) purchases and sales of Property in the ordinary course of business;
(b) the incurrence of Permitted Liens;
(c) the merger, consolidation, dissolution or liquidation of (1) any Subsidiary with or into (i) Borrower if Borrower shall be the continuing or surviving corporation or (ii) any Qualified Subsidiary if a Qualified Subsidiary shall be the continuing or surviving corporation, and (2) any Subsidiary which is not a Qualified Subsidiary with or into any other Subsidiary which is not a Qualified Subsidiary;
(d) Dispositions by any Subsidiary to dispose Borrower or to any Qualified Subsidiary;
(e) Dispositions of used, worn out, obsolete or lease surplus Property by any Company in the ordinary course of business;
(f) sale or selldiscount, all in each case without recourse, of accounts receivable past due arising in the ordinary course of business, but only in connection with the compromise or collection thereof, provided, however, -------- ------- that in no event may any substantial portion of its properties, assets and business Company enter into any factoring or securitization program with respect to receivables;
(g) In addition to any other PersonDispositions permitted under this Agreement, except that New Hillhaven Borrower or any Subsidiary may lease, sell or otherwise dispose of all or effect any part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary Disposition for consideration at least equal to the fair market value resulting in gross proceeds not to exceed $50.0 million in the aggregate in any fiscal year of Borrower and $200.0 million since the Closing Date;
(h) Acquisitions by Borrower or any Qualified Subsidiary of any Person engaged in or any Property used in the coal business; provided, -------- however, that each Acquisition under this Section 9.06(h) shall satisfy ------- each of the following conditions:
(i) no Default then exists or would result therefrom;
(ii) no Company shall, in connection with any such Acquisition, assume or remain liable with respect to any Indebtedness or other liability (including any material tax or ERISA liability) of the related seller, except (1) to the extent permitted under Section 9.08, and (2) obligations of the seller incurred in the ordinary course of business and necessary or desirable to the continued operation of the underlying properties, assets and any other such liabilities or business (as determined obligations not permitted to be assumed or otherwise supported by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing Companies hereunder shall be paid in full or released as to the contraryassets being so acquired on or before the consummation of such Acquisition;
(iii) the Properties acquired in connection with any such Acquisition shall be free and clear of any Liens, other than Permitted Liens;
(iv) the board of directors of the acquired Person shall not have indicated publicly its opposition to the consummation of such Acquisition;
(v) such Acquisition shall be effected through Borrower or a Qualified Subsidiary and the Person acquired shall be merged with or into a Qualified Subsidiary or shall be at the time of consummation thereof a Qualified Subsidiary;
(vi) with respect to any Acquisition involving Acquisition Consideration of more than $25.0 million, Borrower shall have provided the Agents and the Lenders with (1) historical financial statements for the last three fiscal years of the Person or business to be acquired (audited if available without undue cost or delay) and unaudited financial statements thereof for the most recent interim period which are available, (2) reasonably detailed projections for the succeeding five years pertaining to the Person or business to be acquired, (3) a reasonably detailed description of all material information relating thereto and copies of all material documentation pertaining to such Acquisition, and (4) all such other information and data relating to such Acquisition or the Person or business to be acquired as may be reasonably requested by the Agents or the Majority Lenders;
(vii) Borrower shall have delivered to the Agents and the Lenders an Officers' Certificate certifying that such Acquisition shall not have a Material Adverse Effect; and
(viii) the Acquisition Consideration (other than Equity Issuances) for such Acquisition shall not exceed $100.0 million, and the aggregate amount of the Acquisition Consideration (other than Equity Issuances) for all Acquisitions effected pursuant to this Section 9.06(h) since the Closing Date shall not exceed $200.0 million.
(i) transfers resulting from any casualty or condemnation of Property;
(j) licenses or sublicenses by any Company of software, trademarks and other intellectual property and general intangible and leases, licenses or subleases of other property in the ordinary course of business and which do not materially interfere with the business of any Company;
(k) any consignment arrangements or similar arrangements for the sale of assets in the ordinary course of business of any Company;
(l) the making of Investments permitted by Section 9.09 and the liquidation in the ordinary course of business of (A) Permitted Investments and (B) Investments made pursuant to Sections 9.09(A)(a) and 9.09(A)(b);
(m) Acquisitions by Borrower or any Subsidiary of any new Subsidiary; provided, however, that (1) the sole consideration provided therefor by the -------- ------- Companies is common Equity Interests of Borrower, and (2) such Acquisition shall comply with each of clauses (i), (ii), (iii), (iv), (v), (vii) and (viii) of Section 9.06(h) (with references therein to Section 9.06(h) being deemed references to this Section 9.06(m));
(n) the Triton Disposition; and
(o) the restructuring, renegotiation or termination of any Coal Supply Agreement resulting in Borrower or its Subsidiaries receiving in a single transaction, or series of related transactions, cash proceeds of no event may New Hillhaven leasegreater than $50.0 million. To the extent the Majority Lenders waive the provisions of this Section 9.06 with respect to the sale or other disposition of any Collateral, sell or any Collateral is sold or otherwise dispose disposed of or permit as permitted by this Section 9.06 (other than to any Subsidiary to leaseCompany), sell such Collateral in each case shall be sold or otherwise dispose disposed of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion free and clear of the proceeds from Liens created by the Security Documents and Administrative Agent shall take such sale actions as are sufficient, and are applied directly, to repay such Indebtednessappropriate in connection therewith.
Appears in 1 contract
Samples: Senior Subordinated Credit Agreement (Princess Beverly Coal Holding Co Inc)
Limitation on Fundamental Changes. Merge Acquisitions or -------------------------------------------------- Dispositions. No Company shall, directly or indirectly, in a single transaction ------------- or series of transactions, (1) merge, consolidate or amalgamate with or into any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingPerson, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell(2) effect any Acquisition, or permit (3) effect any Disposition (or agree to do any of the foregoing). Notwithstanding the foregoing provisions of this Section 9.06, each of the following shall be permitted:
(a) purchases and sales of Property in the ordinary course of business;
(b) the pledge of the Collateral pursuant to the Security Documents;
(c) the merger, consolidation, dissolution or liquidation of (1) any Subsidiary with or into (i) Borrower if Borrower shall be the continuing or surviving corporation or (ii) any Qualified Subsidiary if a Qualified Subsidiary shall be the continuing or surviving corporation, and (2) any Subsidiary which is not a Qualified Subsidiary with or into any other Subsidiary which is not a Qualified Subsidiary;
(d) Dispositions by any Subsidiary to dispose Borrower or to any Qualified Subsidiary;
(e) Dispositions of used, worn out, obsolete or lease surplus Property by any Company in the ordinary course of business;
(f) sale or selldiscount, all in each case without recourse, of accounts receivable past due arising in the ordinary course of business, but only in connection with the compromise or collection thereof; provided, however, -------- ------- that in no event may any substantial portion of its properties, assets and business Company enter into any factor in with respect to receivables;
(g) In addition to any other PersonDispositions permitted by this Agreement, except that New Hillhaven Borrower or any Subsidiary may lease, sell or otherwise dispose of all or effect any part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary Disposition for consideration at least equal to the fair market value resulting in gross proceeds not to exceed $50.0 million in the aggregate in any fiscal year of Borrower and $200.0 million since the Closing Date; provided, however, that in each case, the Net Available Proceeds therefrom -------- ------- are reinvested as specified in Section 2.1(a)(iv) or applied to the prepayment of the Loans as specified in Section 2.10(a)(iv);
(h) Acquisitions by Borrower or any Qualified Subsidiary of any Person engaged in or any Property used in the coal business; provided, however, -------- -------- that each Acquisition under this Section 9.06(h) shall satisfy each of the following conditions:
(i) no Default then exists or would result therefrom;
(ii) after giving pro forma effect to such Acquisition, (1) Borrower shall be in compliance with all covenants set forth in Section 9.11 as of the most recent Test Date (assuming, for purposes of Section 9.11, that such Acquisition, and all other Permitted Acquisitions consummated since the first day of the relevant measurement period for each financial covenant set forth in Section 9.11 ending on such last day, had occurred on the first day of such relevant measurement period), and (2) Borrower and the Subsidiaries can reasonably be expected to remain in compliance with such covenants through the Final Maturity Date and to have sufficient cash liquidity to conduct their respective business and pay their respective debts and other liabilities as they come due;
(iii) no Company shall, in connection with any such Acquisition, assume or remain liable with respect to any Indebtedness or other liability (including any material tax or ERISA liability) of the related seller, except (1) to the extent permitted under Section 9.08, and (2) obligations of the seller incurred in the ordinary course of business and necessary or desirable to the continued operation of the underlying properties, assets and any other such liabilities or business (as determined obligations not permitted to be assumed or otherwise supported by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing Companies hereunder shall be paid in full or released as to the contraryassets being so acquired on or before the consummation of such Acquisition;
(iv) the Properties acquired in connection with any such Acquisition shall be free and clear of any Liens, other than Permitted Liens (or, in no the event may New Hillhaven leasesuch Properties shall constitute Additional Collateral or Real Property required, sell pursuant to the provisions of Section 9.12, to be pledged to Administrative Agent, Liens of the type that would constitute Prior Liens under the Security Documents executed and delivered on the date hereof);
(v) the board of directors of the acquired Person shall not have indicated publicly its opposition to the consummation of such Acquisition;
(vi) such Acquisition shall be effected through Borrower or otherwise dispose a Qualified Subsidiary and the Person acquired shall be merged with or into a Qualified Subsidiary or shall be at the time of consummation thereof a Qualified Subsidiary;
(vii) with respect to any Acquisition involving Acquisition Consideration of more than $25.0 million, Borrower shall have provided the Agents and the Lenders with (1) historical financial statements for the last three fiscal years of the Person or permit any Subsidiary business to leasebe acquired (audited if available without undue cost or delay) and unaudited financial statements thereof for the most recent interim period which are available, sell (2) reasonably detailed projections for the succeeding five years pertaining to the Person or otherwise dispose business to be acquired, (3) a reasonably detailed description of all material information relating thereto and copies of all material documentation pertaining to such Acquisition, and (4) all such other information and data relating to such Acquisition or any part of its property, assets the Person or business to be acquired as may be reasonably requested by the Agents or the Majority Lenders;
(includingviii) Borrower shall have delivered to the Agents and the Lenders an Officers' Certificate certifying that (1) such Acquisition complies with this Section 9.06(h) (which shall have attached thereto reasonably detailed backup data and calculations showing such compliance), without limitationand (2) such Acquisition shall not have a Material Adverse Effect; and
(ix) the Acquisition Consideration (other than Equity Issuances) for such Acquisition shall not exceed $100.0 million, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless and the cash portion aggregate amount of the proceeds Acquisition Consideration (other than Equity Issuances) for all Acquisitions effected pursuant to this Section 9.06(h) since the Closing Date shall not exceed $200.0 million.
(i) transfers resulting from such any casualty or condemnation of Property;
(j) licenses or sublicenses by any Company of software, trademarks and other intellectual property and general intangible and leases, licenses or subleases of other property in the ordinary course of business and which do not materially interfere with the business of any Company;
(k) any consignment arrangements or similar arrangements for the sale are sufficient, of assets in the ordinary course of business of any Company;
(1) the making of Investments permitted by Section 9.09 and are applied directly, the liquidation in the ordinary course of business of (A) Permitted Investments and (B) Investments made pursuant to repay such Indebtedness.Sections 9.09(A)(a) and 9.09(A)(b);
Appears in 1 contract
Samples: Credit Agreement (Princess Beverly Coal Holding Co Inc)
Limitation on Fundamental Changes. Merge The Borrower will not, and will not permit any of its Subsidiaries to (i) merge, amalgamate or consolidate into any other Person, (ii) divide, (iii) sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of its assets or the Capital Stock of any of its Subsidiaries, or (iv) liquidate, wind-up, dissolve or take such other similar action; provided that if, at the time thereof and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing, (1) the Borrower may merge, amalgamate or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven if the Borrower is the surviving corporation andPerson, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, or permit (2) any Subsidiary to merge Guarantor may merge, amalgamate or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) if such Subsidiary Guarantor is the surviving corporation Person (any mergers, amalgamations or consolidations with the consideration received by New Hillhaven in connection therewith is at least equal Borrower are subject to the fair market value of such Subsidiary foregoing clause (as determined by the Board of Directors of New Hillhaven in good faith1) and (ii) after giving effect any [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to such merger the omitted portions. Subsidiary Guarantor may merge, amalgamate or consolidation, no Default or Event of Default has occurred and is continuing, or liquidate or dissolve itself (or suffer any liquidation or dissolutionconsolidate into another Subsidiary Guarantor), (3) any Non-Loan Party may merge, amalgamate or dispose of or lease or sellconsolidate into another Non-Loan Party, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or (4) any Subsidiary may leasedivide, sell sell, transfer, lease or otherwise dispose of all or any part substantially all of its propertyassets to a Loan Party, assets or business (including5) any Non-Loan Party may divide, without limitationsell, Stock) to any Persontransfer, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell lease or otherwise dispose of all or any part substantially all of its propertyassets to another Non-Loan Party, assets (6) any Subsidiary may liquidate, wind up, dissolve or business (including, without limitation, Stock) encumbered by a Lien take such other similar action if the Borrower determines in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or good faith that such action is in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion best interests of the proceeds Borrower and (7) the Borrower and any Subsidiary may consummate a Permitted Acquisition. Limitation on Asset Dispositions; Proceeds from such sale are sufficient, Asset Dispositions and are applied directly, to repay such IndebtednessRecovery Events .
Appears in 1 contract
Limitation on Fundamental Changes. Merge or (a) The Borrower will not consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, any --------------------------------- other Person, unless:
(i) the resulting, surviving or transferee Person (except as the “Successor Company”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Borrower) will expressly permitted assume all the obligations of the Borrower under this Agreement by Section 4(eexecuting and delivering to the Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(ii) hereof) unless New Hillhaven is the surviving corporation and, immediately after giving effect to such merger transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or consolidationany Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default has shall have occurred and is be continuing, or permit any Subsidiary to merge or consolidate with any other Person ;
(except as expressly permitted by Section 4(eiii) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) immediately after giving effect to such merger or consolidationtransaction, no Default or Event either (A) the Borrower (or, if applicable, the Successor Company with respect thereto) could Incur at least $1.00 of Default has occurred and is continuing, or liquidate or dissolve itself (or suffer any liquidation or dissolutionadditional Indebtedness pursuant to subsection 7.1(a), or dispose (B) the Consolidated Coverage Ratio of the Borrower (or, if applicable, the Successor Company with respect thereto) would equal or lease or sell, or permit exceed the Consolidated Coverage Ratio of the Borrower immediately prior to giving effect to such transaction;
(iv) each applicable Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guarantee in connection with such transaction and (y) any party to dispose any such consolidation or merger) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guarantee under the Guarantee and Collateral Agreement (other than any Subsidiary Guarantee that will be discharged or terminated in connection with such transaction); and
(v) The Borrower shall have delivered to the Administrative Agent a certificate signed by a Responsible Officer and a legal opinion each to the effect that such consolidation, merger or transfer complies with the provisions described in this paragraph, provided that (x) in giving such opinion such counsel may rely on such certificate of such Responsible Officer as to compliance with the foregoing clauses (ii) and (iii) of subsection 7.3(a) and as to any matters of fact, and (y) no such legal opinion will be required for a consolidation, merger or lease or sell, all transfer described in clause (d) of this subsection 7.3.
(b) Any Indebtedness that becomes an obligation of the Successor Company or any substantial portion Restricted Subsidiary (or that is deemed to be Incurred by any Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of its propertiesany such transaction undertaken in compliance with this subsection 7.3, assets and business any Refinancing Indebtedness with respect thereto, shall be deemed to any other Personhave been Incurred in compliance with subsection 7.1.
(c) The Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement, and thereafter the predecessor Borrower shall be relieved of all obligations and covenants under this Agreement, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose the predecessor Borrower in the case of a lease of all or substantially all its assets will not be released from the obligation to pay the principal of and interest on the Loans.
(d) Subsection 7.3(a) will not apply to any transaction in which the Borrower consolidates or merges with or into or transfers all or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of reincorporating or reorganizing the Borrower in another jurisdiction or changing its legal structure to a corporation or other entity or (y) a Restricted Subsidiary of the Borrower so long as all assets of the Borrower and the Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such Restricted Subsidiary) are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof. Subsection 7.3(a) will not apply to (1) any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets Borrower or business (as determined by 2) the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessTransactions.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Great North Imports, LLC)
Limitation on Fundamental Changes. Merge or (a) The Borrower will not consolidate with or merge with or into, or convey, lease or otherwise transfer all or substantially all its assets to, any --------------------------------- other Person (except as including pursuant to a Division), unless:
(i) the resulting, surviving or transferee Person (the “Successor Borrower”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Borrower (if not the Borrower) will expressly permitted assume all the obligations of the Borrower under this Agreement and the Loan Documents to which it is a party by Section 4(eexecuting and delivering to the Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(ii) hereof) unless New Hillhaven is the surviving corporation and, immediately after giving effect to such merger transaction (and treating any Indebtedness that becomes an obligation of the Successor Borrower or consolidationany Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Borrower or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default has will have occurred and is be continuing, or permit any Subsidiary to merge or consolidate with any other Person ;
(except as expressly permitted by Section 4(eiii) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) immediately after giving effect to such transaction, either (A) the Borrower (or, if applicable, the Successor Borrower with respect thereto) could Incur at least $1.00 of additional Indebtedness pursuant to Subsection 8.1(a) or (B) the Consolidated Coverage Ratio of the Borrower (or, if applicable, the Successor Borrower with respect thereto) would equal or exceed the Consolidated Coverage Ratio of the Borrower immediately prior to giving effect to such transaction;
(iv) each Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guaranty in connection with such transaction and (y) any party to any such consolidation or merger) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guaranty (other than any Subsidiary Guaranty that will be discharged or terminated in connection with such transaction);
(v) each Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Guarantee and Collateral Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have by a supplement to the Guarantee and Collateral Agreement or another document or instrument affirmed that its obligations thereunder shall apply to its Guarantee as reaffirmed pursuant to clause (iv) above;
(vi) each grantor or mortgagor of a Mortgaged Fee Property (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Guarantee and Collateral Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have affirmed that its obligations under the applicable Mortgage shall apply to its Guarantee as reaffirmed pursuant to clause (iv) above; and
(vii) the Borrower will have delivered to the Administrative Agent a certificate signed by a Responsible Officer and a legal opinion, each to the effect that such consolidation, merger or transfer complies with the provisions described in this Subsection 8.7(a); provided that (x) in giving such opinion such counsel may rely on such certificate of a Responsible Officer as to compliance with the foregoing clauses (ii) and (iii) of this Subsection 8.7(a) and as to any matters of fact, and (y) no such legal opinion will be required for a consolidation, no Default merger or Event transfer described in Subsection 8.7(d).
(b) Any Indebtedness that becomes an obligation of Default has occurred and is continuingthe Borrower (or, if applicable, any Successor Borrower with respect thereto) or liquidate or dissolve itself any Restricted Subsidiary (or suffer that is deemed to be Incurred by any liquidation or dissolution)Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this Subsection 8.7, or dispose and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with Subsection 8.1.
(c) Upon any transaction involving the Borrower in accordance with Subsection 8.7(a) in which the Borrower is not the Successor Borrower, the Successor Borrower will succeed to, and be substituted for, and may exercise every right and power of, the Borrower under the Loan Documents, and shall become the “Borrower” for all purposes of or lease or sellthe Loan Documents, or permit any Subsidiary and thereafter the predecessor Borrower shall be relieved of all obligations and covenants under the Loan Documents, and shall cease to dispose constitute the “Borrower” for all purposes of or lease or sell, all or any substantial portion of its properties, assets and business to any other Personthe Loan Documents, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose the predecessor Borrower in the case of a lease of all or substantially all its assets will not be released from the obligation to pay the principal of and interest on the Term Loans.
(d) Clauses (ii) and (iii) of Subsection 8.7(a) will not apply to any transaction in which (I) the Borrower consolidates or merges with or into or transfers all or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of reincorporating or reorganizing the Borrower in another jurisdiction or changing its legal structure to a corporation, limited liability company or other entity or (y) a Restricted Subsidiary of the Borrower so long as all assets of the Borrower and the Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such Restricted Subsidiary) are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof or (II) an Escrow Subsidiary merges with and into the Borrower. Subsection 8.7(a) will not apply to (i) any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets Borrower or business (as determined by ii) the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessTransactions.
Appears in 1 contract
Samples: Cash Flow Credit Agreement (Cornerstone Building Brands, Inc.)
Limitation on Fundamental Changes. Merge Enter into any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion substantially all of its propertiesproperty, assets and business to or assets, or make any other Personmaterial change in its present method of conducting business, except that New Hillhaven that, if at the time thereof and immediately after giving effect thereto, no Default or Event of Default otherwise shall have occurred and be continuing:
(a) any Subsidiary of the Borrower may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving corporation) or with or into any one or more wholly owned Subsidiaries of the Borrower (provided that the wholly owned Subsidiary or wholly owned Subsidiaries shall be the continuing or surviving corporation and is (or are), or simultaneously therewith shall become, a Guarantor or Guarantors and, if any such merger or consolidation involves any Domestic Subsidiary, a Domestic Subsidiary that is a Loan Party shall be the continuing or surviving corporation); it being agreed and understood that this paragraph (a) shall not constitute the consent to or approval of any Acquisition that otherwise is not permitted by the terms of this Agreement;
(b) any wholly owned Subsidiary may sell, lease, sell transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any part other wholly owned Subsidiary of its propertythe Borrower that is both a Loan Party and a Domestic Subsidiary; and
(c) the Borrower or any Subsidiary thereof may merge with any Person organized or existing under the laws of the United States of America, assets any State thereof or business (includingthe District of Columbia in connection with a Permitted Acquisition; provided that if such transaction involves the Borrower, without limitationthe Borrower shall be the continuing or surviving corporation and, Stock) to if such transaction involves any Personother Loan Party, includingthe surviving person must be a Domestic Subsidiary and must become a Guarantor of the obligations of the Borrower hereunder; provided, without limitationthat, New Hillhaven or a Consolidated Subsidiary for consideration at least equal subject to the fair market value of such propertiesother limitations herein set forth with respect to Foreign Subsidiaries, assets the Borrower or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any Subsidiary of the foregoing to Borrower may merge with any Person that is not organized or existing under the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion laws of the proceeds from such sale are sufficientUnited States of America, and are applied directly, to repay such Indebtednessany State thereof or the District of Columbia in connection with any Category 1 Permitted Acquisition.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andBorrower will not and will not permit any of the Restricted Subsidiaries to, after giving effect to such merger consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose Dispose of all or lease substantially all of its business units, assets or sellother properties, or permit except that:
(a) any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person, (ii) no Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation and (iii) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to dispose the consummation of such merger, amalgamation or lease consolidation, is not a Restricted Subsidiary of the Borrower (A) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or sellconsolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (B) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to the Administrative Agent an opinion of counsel to the effect that such merger, amalgamation or consolidation does not breach or result in a default under this Agreement or any other Credit Document and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5;
(b) any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into any one or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or any substantial portion substantially all of its propertiesbusiness units, assets and business other properties; provided that, (i) in the case of any merger, amalgamation or Disposition involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or the transferee of such assets or (B) the Borrower shall cause the Person formed by or surviving any such merger, amalgamation or consolidation or the transferee of such assets and properties (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Subsidiary Guarantors, a Subsidiary Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation or the transferee of such assets and properties (if other than a Subsidiary Guarantor) shall execute a supplement to the Guarantee, the Security Agreement, the applicable Pledge Agreement and any applicable Mortgage, and a joinder to the Intercompany Note, each in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Subsidiary Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note, (iii) no Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, NY\6379601.11 consolidation or Disposition and (iv) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary, (A) the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer stating that such merger, amalgamation, consolidation or Disposition and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents and (B) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5;
(c) any Restricted Subsidiary that is not a Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other PersonRestricted Subsidiary and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, except that New Hillhaven a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor, (ii) merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Subsidiary Guarantor; provided that, if such Subsidiary Guarantor is not the surviving entity, such merger, amalgamation or consolidation shall be deemed to be an “Investment” and subject to the limitations set forth in Section 10.5 and (iii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Subsidiary Guarantor;
(e) any Restricted Subsidiary may leaseliquidate or dissolve if (x) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Subsidiary Guarantor, sell or otherwise dispose of all or any part of its property, assets or business (includingnot otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contraryor, in no event may New Hillhaven leasethe case of any such business, sell discontinued, shall be transferred to, or otherwise dispose owned or conducted by, the Borrower or another Subsidiary Guarantor after giving effect to such liquidation or dissolution; and
(f) the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or Disposition, the purpose of or permit any Subsidiary which is to lease, sell or otherwise dispose of all or any part of its property, assets or business effect a Disposition permitted pursuant to Section 10.4 (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtednessother than 10.4(i)).
Appears in 1 contract
Samples: Credit Agreement (Amsurg Corp)
Limitation on Fundamental Changes. Merge Except as otherwise permitted under SECTION 9.11 or SECTION 9.12, the Borrower will not, and will not permit any of its Subsidiaries (other than Excluded Subsidiaries, excluding DHHS) to, become a party to a merger, consolidation, partnership, joint venture, or other combination, or wind-up, dissolve or liquidate itself, or sell, lease or dispose of all or a substantial portion of its business or assets; PROVIDED, HOWEVER, that any Wholly-Owned Subsidiary may merge into, consolidate with or transfer its business or assets to Borrower or any --------------------------------- other Person Wholly-Owned Subsidiary if (except as expressly permitted by Section 4(ea) hereofin such a merger, consolidation or transfer, the Borrower or such other Wholly-Owned Subsidiary (other than an Excluded Subsidiary) unless New Hillhaven is survives and in the surviving corporation andcase of such a Subsidiary, after giving effect to such merger or consolidationremains a Wholly- Owned Subsidiary of Borrower, and (b) no Default or Event of Default has occurred occurs and is continuing, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) continuing after giving effect to such merger merger, consolidation or consolidationtransfer; PROVIDED, no Default or Event FURTHER, that the Borrower and its Subsidiaries shall be permitted to form partnerships and joint ventures which, after formation, are Subsidiaries and are otherwise permitted by this Agreement, and the requirements of Default has occurred SECTION 9.9(D) are satisfied with regard thereto; and is continuingPROVIDED, or liquidate or FURTHER, HOWEVER, that Subsidiaries substantially all of the assets of which have been disposed of in accordance with this Agreement may wind up, dissolve itself (or suffer any liquidation or dissolution)and liquidate. The Borrower will not, or dispose of or lease or sell, or nor will it permit any of its Subsidiaries to, form any Subsidiary that would be a second-tier Subsidiary of the Borrower that would not be an Excluded Subsidiary unless the Borrower's Subsidiaries shall not be prohibited by the terms and conditions of any contract or agreement to which the Borrower or any of its Subsidiaries is a party, including without limitation the Indenture, to pledge the Capital Stock of such second-tier Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary the Agent for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any benefit of the foregoing to Lenders in accordance with the contrary, in no event may New Hillhaven lease, sell or otherwise dispose provision of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSECTION 5.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or (a) The Parent Borrower will not consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, any --------------------------------- other Person, unless:
(i) the resulting, surviving or transferee Person (except as the “Successor Company”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Parent Borrower) will expressly permitted assume all the obligations of the Parent Borrower under this Agreement and the Loan Documents to which it is a party by Section 4(eexecuting and delivering to the Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(ii) hereof) unless New Hillhaven is the surviving corporation and, immediately after giving effect to such merger transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or consolidationany Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default has will have occurred and is be continuing, or permit any Subsidiary to merge or consolidate with any other Person ;
(except as expressly permitted by Section 4(eiii) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) immediately after giving effect to such merger or consolidationtransaction, no Default or Event the Parent Borrower (or, if applicable, the Successor Company with respect thereto) could Incur at least $1.00 of Default has occurred additional Indebtedness pursuant to subsection 8.1(a);
(iv) each applicable Subsidiary Borrower and is continuing, or liquidate or dissolve itself Guarantor (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit other than (x) any Subsidiary to dispose of Borrower and Subsidiary Guarantor that will be released from its obligations under this Agreement or lease or sell, all or its Subsidiary Guarantee in connection with such transaction and (y) any substantial portion of its properties, assets and business party to any such consolidation or merger) shall have delivered a joinder or other Persondocument or instrument in form reasonably satisfactory to the Administrative Agent, except that New Hillhaven confirming its obligations as applicable under this Agreement or its Subsidiary Guarantee (other than obligations under this Agreement or any Subsidiary may lease, sell Guarantee that will be discharged or otherwise dispose terminated in connection with such transaction) (if a Subsidiary Guarantor) or guarantee of all or the obligation of the Parent Borrower under the ABL Loan Documents pursuant to the Guarantee and Collateral Agreement (if any part of its property, assets or business other Guarantor);
(including, without limitation, Stockv) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal the extent required to be Collateral pursuant to the fair market value terms of such propertiesthe Security Documents and this Agreement, assets or business (as determined the Collateral owned by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of Successor Company will (a) continue to constitute Collateral under the foregoing Security Documents and (b) be subject to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME the Collateral Agent; and
(vi) the Parent Borrower will have delivered to the Administrative Agent a certificate signed by a Responsible Officer and a legal opinion each to the effect that such consolidation, merger or transfer complies with the provisions described in this paragraph, provided that (x) in giving such opinion such counsel may rely on such certificate of such Responsible Officer as to compliance with the foregoing clauses (ii) and (iii) of this subsection 8.3(a) and as to any matters of act, and (y) no such legal opinion will be required for a consolidation, merger or transfer described in clause (d) of this subsection 8.3.
(b) Any Indebtedness that becomes an obligation of the Parent Borrower (or, if applicable, the Successor Company with respect thereto) or any Restricted Subsidiary (or that is deemed to be Incurred by any Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this subsection 8.3, and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with subsection 8.1.
(c) Upon any transaction involving the Parent Borrower in accordance with subsection 8.3(a) in which the Parent Borrower is not the Successor Company, the Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Parent Borrower under the Loan Documents, and thereafter the predecessor Parent Borrower shall be relieved of all obligations and covenants under this Agreement, except that the predecessor Parent Borrower in the case of a lease of all or substantially all its assets will not be released from the obligation to pay the principal of and interest on the Loans.
(d) Clause (ii) and (iii) of subsection 8.3(a) will not apply to any transaction in which the Parent Borrower consolidates or merges with or into or transfers all or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of NME, reincorporating or by reorganizing the Parent Borrower in another jurisdiction or changing its legal structure to a Lien securing Indebtedness guaranteed corporation or in effect guaranteed by NME other entity or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or (y) a Consolidated Subsidiary, unless the cash portion Restricted Subsidiary of the proceeds from Parent Borrower so long as all assets of the Parent Borrower and its Restricted Subsidiaries immediately prior to such sale transaction (other than Capital Stock of such Restricted Subsidiary) are sufficientowned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof. Subsection 8.3(a) will not apply to (1) any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its assets to the Parent Borrower (and are applied directly, to repay such Indebtednessfor the avoidance of doubt the Parent Borrower is the surviving entity) or (2) the Transactions.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 8.4 or 8.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit the Restricted Subsidiaries to, consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to dispose of or lease or sellotherwise consummate the disposition of, all or any substantial portion of substantially all its business units, assets or other properties, assets except that:
(a) so long as (i) both before and business after giving effect to such transaction, no Payment Default or Event of Default has occurred and is continuing or would result therefrom and (ii) after giving effect to such transaction the Borrower shall be in compliance, on a Pro Forma Basis, with the minimum liquidity covenant set forth in Section 8.9, any Subsidiary of the Borrower or any other PersonPerson may be merged, except amalgamated or consolidated with or into the Borrower; provided that New Hillhaven the Borrower shall be the continuing or surviving company;
(b) so long as no Payment Default or Event of Default has occurred and is continuing, or would result therefrom, any Subsidiary of the Borrower or any other Person (in each case, other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee and the relevant Security Documents, each in form and substance reasonably satisfactory to the Administrative Agent in order to become a Guarantor and pledgor, mortgagor and grantor, as applicable, thereunder for the benefit of the Secured Parties and (iii) Borrower shall have delivered to the Administrative Agent an officers’ certificate stating that such merger, amalgamation or consolidation and any such supplements to the Guarantee and any Security Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the applicable Security Documents;
(c) any Restricted Subsidiary that is not a Credit Party may sell, lease, sell transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any part of its property, assets other Restricted Subsidiary;
(d) the Borrower or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contraryBorrower may sell, in no event may New Hillhaven lease, sell transfer or otherwise dispose of any or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its propertyassets (upon voluntary liquidation or otherwise) to any Credit Party; provided that the consideration for any such disposition by any Person other than a Guarantor shall not exceed the fair value of such assets;
(e) any Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, any assets or business (including, without limitation, Stock) encumbered by a Lien of such Restricted Subsidiary not otherwise disposed of or transferred in favor of NME accordance with Section 8.4 or an Affiliate of NME8.5, or by in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Lien securing Indebtedness guaranteed Credit Party after giving effect to such liquidation or in dissolution; and
(f) to the extent that no Payment Default or Event of Default would result from the consummation of such Disposition, the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or disposition, the purpose of which is to effect guaranteed by NME or an Affiliate of NME, a Disposition permitted pursuant to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 8.4.
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Limitation on Fundamental Changes. Merge The Borrower will not, and will not permit any of its Restricted Subsidiaries to, enter into any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion of substantially all its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its propertyunits, assets or business other properties, except that: (includinga) so long as no Event of Default has occurred and is continuing or would result therefrom, without limitationany Subsidiary of the Borrower or any other Person may be merged, Stockamalgamated or consolidated with or into the Borrower; continuing or surviving corporation; provided that the Borrower shall be the (b) so long as no Event of Default has occurred and is continuing or would result any other Person (in each case, other than therefrom, any Subsidiary of the Borrower or the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any Personmerger, includingamalgamation or consolidation involving one or more Guarantors, without limitationa Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, New Hillhaven amalgamation or consolidation and if the surviving Person is not already a Consolidated Subsidiary for consideration at least equal Guarantor, such Person shall execute a supplement to the fair market value of such propertiesGuarantee and the relevant Security Documents in form and substance reasonably satisfactory to the Administrative Agent in order to become a Guarantor and pledgor, assets or business (mortgagor and grantor, as determined by applicable, thereunder for the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any benefit of the foregoing Secured Parties, and (iii) the Borrower shall have delivered to the contraryAdministrative Agent an officer’s certificate stating that such merger, in no event may New Hillhaven lease, sell amalgamation or otherwise dispose of or permit consolidation and any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, such supplements to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless Security Document preserve the cash portion enforceability of the proceeds from such sale are sufficient, Guarantees and are applied directly, to repay such Indebtedness.the perfection and priority of the Liens under the applicable Security Documents; (c) the Transactions may be consummated; -132-#8983238089847286v115
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose Dispose of all or lease substantially all its business units, assets or other properties, except that:
(a) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into the Borrower or the Borrower may Dispose of all or substantially all of its assets or properties; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation where the Borrower is not the continuing or surviving Person, the Borrower, or in connection with a Disposition of all or substantially all of the Borrower’s assets, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the Borrower) or the transferee of such assets or properties shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation, consolidation or Disposition or would result from such consummation of such merger, amalgamation, consolidation or Disposition and (iv) if such merger, amalgamation, consolidation or Disposition involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower (A) each Guarantor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have confirmed by a supplement to the Guarantee that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (B) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and shall have executed a joinder to the Intercompany Note, (C) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (E) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to the Administrative Agent an opinion of counsel to the effect that such merger, amalgamation, consolidation or Disposition does not violate this Agreement or any other Credit Document, (F) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 and (G) the Successor Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation, consolidation or Disposition, with the covenants set forth in Sections 10.9 and 10.10, as such covenants are recomputed as of the last day of the most recently ended Test Period under such Sections as if such merger, amalgamation, consolidation or Disposition had occurred on the first day of such Test Period; provided further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;
(b) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into any one or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its assets or properties; provided that (i) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving corporation or the transferee of such assets or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation, consolidation or Disposition (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation, consolidation involving one or more Subsidiary Guarantors, a Subsidiary Guarantor shall be the continuing or surviving corporation or the Person formed by or surviving any such merger, amalgamation, consolidation or Disposition (if other than a Subsidiary Guarantor) shall execute a supplement to the Guarantee, the Security Agreement, the Pledge Agreement and any applicable Mortgage, and a joinder to the Intercompany Note, each in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Subsidiary Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note; provided that if such surviving Person is a 100% Non-Guarantor Pledgee, such surviving Person shall not be required to become a Guarantor, pledgor, mortgagor or grantor of Collateral, (iii) no Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition and (iv) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower, (A) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Agreement, (B) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 and (C) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation, consolidation or Disposition, with the covenants set forth in Sections 10.9 and 10.10, as such covenants are recomputed as of the last day of the most recently ended Test Period under such Sections as if such merger, amalgamation, consolidation or Disposition had occurred on the first day of such Test Period;
(c) any Restricted Subsidiary that is not a Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor or into any 100% Non-Guarantor Pledgee, (ii) merge, amalgamate or consolidate with or into any other Restricted Subsidiary which is not a Subsidiary Guarantor; provided that if such Subsidiary Guarantor is not the surviving entity, such merger, amalgamation or consolidation shall be deemed to be an “Investment” and subject to the limitations set forth in Section 10.5 and (iii) sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell license, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, any other Subsidiary Guarantor or any part 100% Non-Guarantor Pledgee;
(e) any Restricted Subsidiary may liquidate or dissolve if (x) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of its propertythe Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Subsidiary Guarantor, any assets or business not otherwise disposed of or transferred in accordance with Section 10.4 or 10.5, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Borrower or another Subsidiary Guarantor after giving effect to such liquidation or dissolution;
(including, without limitation, Stockf) to any Person, including, without limitation, New Hillhaven the extent that no Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesdisposition, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 (as determined by the Board of Directors of New Hillhaven in good faithother than 10.4(i), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtedness).
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose Dispose of all or lease substantially all its business units, assets or other properties, except that:
(a) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into the Borrower or the Borrower may Dispose of all or substantially all of its assets or properties; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation where the Borrower is not the continuing or surviving Person, the Borrower, or in connection with a Disposition of all or substantially all of the Borrower’s assets, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the Borrower) or the transferee of such assets or properties shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation, consolidation or Disposition or would result from such consummation of such merger, amalgamation, consolidation or Disposition and (iv) if such merger, amalgamation, consolidation or Disposition involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower (A) each Guarantor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have confirmed by a supplement to the Guarantee that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (B) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and shall have executed a joinder to the Intercompany Note, (C) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (E) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to the Administrative Agent an opinion of counsel to the effect that such merger, amalgamation, consolidation or Disposition does not violate this 169 LPL – Conformed A&R Credit Agreement Agreement or any other Credit Document, (F) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 and (G) the Successor Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation, consolidation or Disposition, with the covenants set forth in Sections 10.9 and 10.10, as such covenants are recomputed as of the last day of the most recently ended Test Period under such Sections as if such merger, amalgamation, consolidation or Disposition had occurred on the first day of such Test Period; provided further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;
(b) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into any one or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its assets or properties; provided that (i) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving corporation or the transferee of such assets or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation, consolidation or Disposition (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation, consolidation involving one or more Subsidiary Guarantors, a Subsidiary Guarantor shall be the continuing or surviving corporation or the Person formed by or surviving any such merger, amalgamation, consolidation or Disposition (if other than a Subsidiary Guarantor) shall execute a supplement to the Guarantee, the Security Agreement, the Pledge Agreement and any applicable Mortgage, and a joinder to the Intercompany Note, each in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Subsidiary Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note; provided that if such surviving Person is a 100% Non-Guarantor Pledgee, such surviving Person shall not be required to become a Guarantor, pledgor, mortgagor or grantor of Collateral, (iii) no Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition and (iv) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower, (A) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Agreement, (B) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 and (C) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation, consolidation or Disposition, with the covenants set forth in Sections 10.9 and 10.10, as such covenants are recomputed as of the last day of the most recently ended Test Period under such Sections as if such merger, amalgamation, consolidation or Disposition had occurred on the first day of such Test Period; 170 LPL – Conformed A&R Credit Agreement
(c) any Restricted Subsidiary that is not a Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor or into any 100% Non-Guarantor Pledgee, (ii) merge, amalgamate or consolidate with or into any other Restricted Subsidiary which is not a Subsidiary Guarantor; provided that if such Subsidiary Guarantor is not the surviving entity, such merger, amalgamation or consolidation shall be deemed to be an “Investment” and subject to the limitations set forth in Section 10.5 and (iii) sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell license, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, any other Subsidiary Guarantor or any part 100% Non-Guarantor Pledgee;
(e) any Restricted Subsidiary may liquidate or dissolve if (x) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of its propertythe Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Subsidiary Guarantor, any assets or business not otherwise disposed of or transferred in accordance with Section 10.4 or 10.5, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Borrower or another Subsidiary Guarantor after giving effect to such liquidation or dissolution;
(including, without limitation, Stockf) to any Person, including, without limitation, New Hillhaven the extent that no Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesdisposition, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 (as determined by the Board of Directors of New Hillhaven in good faithother than 10.4(i), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtedness).
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with The Borrower will not enter into any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingliquidate, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion of substantially all its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its propertyunits, assets or business other properties, except that:
(including, without limitation, Stocka) to any Subsidiary of the Borrower or any other Person may be merged or consolidated (including by way of liquidation or winding up) with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving entity or the Person formed by or surviving any such merger or consolidation (if other than the Borrower) shall be an entity organized or existing under the laws of the United States or any State thereof (the Borrower or such Person, includingas the case may be, without limitationbeing herein referred to as the “Successor Borrower”), New Hillhaven (ii) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or a Consolidated Subsidiary for consideration at least equal thereto in form and substance reasonably satisfactory to the fair market value Administrative Agent, (iii) no Default or Event of Default is then existing and no Default or Event of Default would result from the consummation of such propertiesmerger or consolidation, assets (iv) the Successor Borrower shall be in compliance, on a pro forma basis after giving effect to such merger or business (consolidation, with the covenant set forth in Section 9.4 as determined by such covenant is recomputed as at the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any last day of the foregoing most recently ended Test Period under each such Section as if such merger or consolidation had occurred on the first day of such Test Period and (v) the Borrower shall have delivered to the contraryAdministrative Agent an officer’s certificate, in form and substance reasonably satisfactory to the Administrative Agent, certifying the compliance referred to in clause (iv) above and stating that such merger or consolidation and such supplement to this Agreement comply with this Agreement and a legal opinion (in form and substance reasonably satisfactory to the Administrative Agent) with respect to the Credit Documents to be delivered, if any, pursuant to clause (ii) above; provided further that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement; and
(b) the Borrower may enter into any merger or consolidation for the purpose of changing its organizational form from a corporation to a limited liability company or from a limited liability company to a corporation; provided that such change has no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless adverse affect on the cash portion rights of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessFinance Parties.
Appears in 1 contract
Limitation on Fundamental Changes. Merge The Borrower will not, and will not permit any of the Restricted Subsidiaries to, consummate any merger, division, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its business units, assets or other properties, except that:
(a) any substantial portion Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person (and the Borrower shall remain an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia) or, in the case of a merger, amalgamation or consolidation with or into the Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Default, Event of Default or Borrowing Base Deficiency has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, (iv) the Borrower’s Consolidated Secured Net Leverage Ratio on a pro forma basis shall not exceed that of the Borrower immediately prior to the consummation of such merger, amalgamation or consolidation, (v) such merger, amalgamation or consolidation does not adversely affect the Collateral, taken as a whole, in any material respect, (vi) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (B) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (C) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents and as to the matters of the nature referred to in Section 6(c), (E) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Credit Document and as to such other matters regarding the Successor Borrower and the Credit Documents as the Administrative Agent or its counsel may reasonably request; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement and (F) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; (vii) the Administrative Agent shall have received at least five (5) days prior to the date of such merger, amalgamation or consolidation all documentation and other information about such Successor Borrower, Subsidiary or other Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Administrative Agent; and (viii) such Subsidiary or other Person shall have executed a customary joinder to any then-existing Junior Lien Intercreditor Agreement;
(b) any Subsidiary of the Borrower or any other Person (other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, unless otherwise permitted by Section 10.5, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee, the Collateral Agreement and any applicable Mortgage, and a joinder to the Intercompany Note and any then-existing Junior Lien Intercreditor Agreement, in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Guarantor, and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note and any then-existing Junior Lien Intercreditor Agreement, (iii) no Default, Event of Default or Borrowing Base Deficiency has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation, (iv) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, (A) the Borrower’s Consolidated Secured Net Leverage Ratio on a pro forma basis shall not exceed that of the Borrower immediately prior to the consummation of such merger, amalgamation or consolidation, (B) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Collateral Agreement and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; and (v) the Administrative Agent shall have received at least five (5) days prior to the date of such merger, amalgamation or consolidation all documentation and other information about such Subsidiary or other Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Administrative Agent or any Lender;
(c) any Restricted Subsidiary that is not a Grantor (other than EHP Topco and EHP Midco) may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Grantor (other than EHP Topco and EHP Midco) and (ii) Dispose of any or all of its propertiesassets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower (other than to the EHP Entities prior to the EHP Discharge Date or to the Production Sharing Entities);
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor;
(e) any Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, any assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Guarantor after giving effect to such liquidation or dissolution; provided, that no Production Sharing Contract shall be Disposed of or transferred to the Borrower or a Guarantor;
(f) the Borrower and its Restricted Subsidiaries may consummate the Transactions;
(g) the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, amalgamation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 or an Investment permitted by Section 10.5;
(h) a Credit Party may consummate any merger the sole purpose of which is to reincorporate or reorganize such Credit Party in another jurisdiction in the United States as long as such merger does not adversely affect the value of the Collateral in any material respect and the surviving entity assumes all Obligations of the applicable Credit Party under the Credit Documents by delivering the information required by Section 9.11 and delivers any applicable information required by Section 9.1(o); and
(i) any Production Sharing Entity may (i) merge, amalgamate or consolidate with or into any other Production Sharing Entity and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessProduction Sharing Entity.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is Sections 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its assets, except that:
(a) the Borrower may merge, consolidate or amalgamate with any substantial portion Person (including any Subsidiary), provided that (i) the Borrower shall be the surviving, continuing or resulting entity or, if the foregoing is not the case, the surviving, continuing, or resulting entity shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Borrowing Base Deficiency (during a Borrowing Base Trigger Period), Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation, consolidation or would result from such consummation of such merger, amalgamation, consolidation, and (iv) if such merger, amalgamation, consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation, consolidation, is not a Subsidiary of the Borrower (A) the Successor Borrower shall be in compliance, on a Pro Forma Basis with the Financial Performance Covenants, (B) each Guarantor, unless it is the other party to such merger, amalgamation, consolidation (or unless the Successor Borrower is the Borrower) shall have confirmed in a [CREDIT AGREEMENT] writing in form and substance acceptable to the Administrative Agent that its propertiesGuarantee shall apply to the Successor Borrower’s obligations under this Agreement (and, assets during a Borrowing Base Trigger Period, shall have confirmed that its obligations under the Security Documents shall apply to the Successor Borrower’s obligations under this Agreement), (C) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and business (D) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation, consolidation does not violate this Agreement or any other PersonCredit Document; provided, except further, that New Hillhaven if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;
(b) any Guarantor may merge, amalgamate or consolidate with (i) any Credit Party (provided that if the Borrower is involved in the case of any such merger, amalgamation or consolidation, the provisions of clause (a) above shall govern) or (ii) any other Person (including any other Subsidiary of the Borrower); provided that (A) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (1) a Restricted Subsidiary shall be the continuing or surviving Person or (2) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (B) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee and any applicable Mortgage, each in form and substance reasonably satisfactory to the Administrative Agent in order for the surviving Person to become a Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties, (C) no Borrowing Base Deficiency (during a Borrowing Base Trigger Period), Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation, and (D) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, the Borrower shall be in compliance, on a Pro Forma Basis with the Financial Performance Covenants;
(c) any Restricted Subsidiary that is not a Guarantor may leasemerge, sell amalgamate or otherwise dispose consolidate with, or Dispose of all or any part substantially all of its propertyassets to, the Borrower or any other Restricted Subsidiary (provided that if the Borrower is involved in the case of any such merger, amalgamation or consolidation, the provisions of clause (a) above shall govern);
(d) any Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, any assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution; and [CREDIT AGREEMENT]
(including, without limitation, Stocke) to any Personthe extent that no Borrowing Base Deficiency (during a Borrowing Base Trigger Period), including, without limitation, New Hillhaven Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesDisposition, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business (as determined by Disposition, the Board purpose of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing which is to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary effect a Disposition permitted pursuant to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 10.4.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andCredit Parties will not, after giving effect to such merger and will not permit any of their respective Restricted Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion of substantially all its business units, assets or other properties, assets except that:
(a) any Subsidiary (other than a License Subsidiary) of the Borrower or any other Person may be merged or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving corporation, and business (ii) no Default or Event of Default would result from the consummation of such merger or consolidation;
(b) any Subsidiary of the Borrower (other than a License Subsidiary) or any other Person may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving corporation or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Subsidiary Guarantors, a Subsidiary Guarantor shall be the continuing or surviving corporation or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Subsidiary Guarantor) shall become a DIP Debtor under the Cases and execute a Joinder Agreement and a supplement to the Security Agreement, (iii) no Default or Event of Default would result from the consummation of such merger, amalgamation or consolidation, and (iv) the Borrower shall have delivered to the Administrative Agent an officers’ certificate stating that such merger, amalgamation or consolidation and such supplements to any Security Document comply with this Agreement;
(c) any Restricted Subsidiary (other Personthan a License Subsidiary) that is not a Guarantor may sell, except that New Hillhaven or any Subsidiary may lease, sell transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated other Restricted Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contraryBorrower;
(d) any Guarantor may sell, in no event may New Hillhaven lease, sell transfer or otherwise dispose of any or permit all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor;
(e) any Restricted Subsidiary (other than a License Subsidiary) may liquidate, wind up or dissolve if (x) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Credit Party, any assets or business not otherwise disposed of or transferred in accordance with Section 10.4 or 10.5, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, another Credit Party after giving effect to such liquidation or dissolution;
(f) any License Subsidiary may (i) be merged or consolidated with any other License Subsidiary that is a Credit Party, (ii) sell, lease, sell transfer or otherwise dispose of any or all of its property (upon voluntary liquidation or otherwise) only to another License Subsidiary that is a Credit Party, (iii) sell, transfer or otherwise dispose of capital stock or other ownership interest of such License Subsidiary only to a Credit Party; and
(g) without limiting the ability of the Borrower or any part of its propertySubsidiaries to form a new Subsidiary under the laws of any jurisdiction, assets the Borrower or business any of its Subsidiaries may change its jurisdiction of organization to the United States of America (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessState thereof).
Appears in 1 contract
Samples: Superpriority Secured Debtor in Possession Credit Agreement (Intelsat S.A.)
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is Sections 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its business units, assets or other properties, except that:
(a) any substantial portion Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation with or into the Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the Borrower) shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, and (iv) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) the Successor Borrower shall be in compliance, on a pro forma basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period under such Section as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period, (B) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (C) each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (F) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Credit Document and that the Credit Documents are enforceable against the Successor Borrower; and (G) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;
(b) any Subsidiary of the Borrower or any other Person (other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee, the Pledge Agreement, the Security Agreement and any applicable Mortgage, each in form and substance reasonably satisfactory to the Administrative Agent in order for the surviving Person to become a Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties, (iii) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation and (iv) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, (A) the Borrower shall be in compliance, on a pro forma basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period under such Section as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period, (B) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents (if involving a Guarantor) and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5;
(c) any Restricted Subsidiary that is not a Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its propertiesassets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor, (ii) merge, amalgamate or consolidate with or into any other Subsidiary which is not a Guarantor or Dispose of any or all of its assets and business (upon voluntary liquidation or otherwise) to any other PersonSubsidiary that is not a Guarantor; provided that if such Subsidiary Guarantor is not the surviving entity, except that New Hillhaven such merger, amalgamation or consolidation shall be deemed to be, and any such Disposition shall be, an “Investment” and subject to the limitations set forth in Section 10.5 and (iii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor;
(e) any Restricted Subsidiary may leaseliquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, sell or otherwise dispose of all or any part of its property, assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5 or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution; and
(including, without limitation, Stockf) to any Personthe extent that no Borrowing Base Deficiency, including, without limitation, New Hillhaven Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesDisposition, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business (as determined by Disposition, the Board purpose of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing which is to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary effect a Disposition permitted pursuant to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 10.4.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit the Restricted Subsidiaries to, consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to dispose of or lease or sellotherwise consummate the disposition of, all or any substantial portion of substantially all its business units, assets or other properties, assets except that:
(a) so long as both before and business after giving effect to such transaction, no Payment Default or Event of Default has occurred and is continuing or would result therefrom, any Subsidiary of the Borrower or any other PersonPerson may be merged, except amalgamated or consolidated with or into the Borrower; provided that New Hillhaven the Borrower shall be the continuing or surviving company;
(b) so long as no Payment Default or Event of Default has occurred and is continuing, or would result therefrom, any Subsidiary of the Borrower or any other Person (in each case, other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee and the relevant Security Documents and a joinder to the Intercompany Subordinated Note, each in form and substance reasonably satisfactory to the Administrative Agent in order to become a Guarantor and pledgor, mortgagor and grantor, as applicable, thereunder for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Subordinated Note and (iii) the Borrower shall have delivered to the Administrative Agent an officers’ certificate stating that such merger, amalgamation or consolidation and any such supplements to the Guarantee and any Security Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the applicable Security Documents;
(c) [reserved];
(d) any Restricted Subsidiary that is not a Credit Party may sell, lease, sell transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any part of its property, assets other Restricted Subsidiary;
(e) the Borrower or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contraryBorrower may sell, in no event may New Hillhaven lease, sell transfer or otherwise dispose of any or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its propertyassets (upon voluntary liquidation or otherwise) to any Credit Party; provided that the consideration for any such disposition by any Person other than a Guarantor shall not exceed the fair value of such assets;
(f) any Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, any assets or business (including, without limitation, Stock) encumbered by a Lien of such Restricted Subsidiary not otherwise disposed of or transferred in favor of NME accordance with Section 10.4 or an Affiliate of NME10.5, or by in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Lien securing Indebtedness guaranteed Credit Party after giving effect to such liquidation or in dissolution; and
(g) to the extent that no Payment Default or Event of Default has occurred and is continuing or would result from the consummation of such Disposition, the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or disposition, the purpose of which is to effect guaranteed by NME or an Affiliate of NME, a Disposition permitted pursuant to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 10.4.
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Samples: Senior Secured Debtor in Possession Credit Agreement (Energy Future Competitive Holdings Co LLC)
Limitation on Fundamental Changes. Merge Enter into any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit purchase all or substantially all of the assets of any Subsidiary to merge Person or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value line of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingbusiness, or liquidate liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose Dispose of all or lease substantially all of its Property or sellbusiness except:
(a) any Subsidiary of the Borrower may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing -------- or surviving corporation) or with or into any Wholly Owned Subsidiary Guarantor (provided that the Wholly Owned Subsidiary Guarantor shall be the -------- continuing or surviving corporation);
(b) any Subsidiary of the Borrower may Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any Wholly Owned Subsidiary Guarantor;
(c) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower or any of its Subsidiaries may merge into or consolidate with, or permit any Subsidiary to dispose of or lease or sell, acquire all or any a substantial portion of the assets of, or the shares of Capital Stock in, any Person (including any division or line of business of any Person) engaged in the business of manufacturing building products, provided, however, that (i) -------- with respect to such acquisition, consolidation or merger, the surviving entity shall be the Borrower or a Wholly Owned Subsidiary Guarantor, (ii) the aggregate amount of all Loans outstanding hereunder for the purpose of funding acquisitions, mergers or consolidations permitted pursuant to this Section 7.4(c) shall not exceed $10,000,000 (after giving effect to the applicable acquisition, consolidation or merger), (iii) assuming that such acquisition, consolidation or merger, and any additional Indebtedness incurred to finance the same, had been consummated and incurred at the beginning of the four (4) most recent consecutive fiscal quarters of the Borrower ending on or immediately prior to the applicable date of such acquisition, consolidation or merger, the Borrower would be in pro--forma compliance with the financial covenant provisions of Section 7.1 hereof for such four (4) consecutive fiscal quarters, (iv) the aggregate amount of the purchase prices and refinancing amounts incurred by the Borrower and its propertiesSubsidiaries in connection with consummating acquisitions, assets mergers or consolidations permitted pursuant to this Section 7.4(c) (after giving effect to such applicable acquisition, merger or consolidation) shall not exceed $15,000,000, and business (v) the Revolving Credit Availability immediately after the consummation of such acquisition, merger or consolidation after giving effect to such acquisition, merger or consolidation shall not be less than $10,000,000 (any other Persontransaction presented under this Section 7.4(c), except that New Hillhaven or a "Permitted Acquisition"); and ----------------------
(d) any Dormant Subsidiary may leasewind up its affairs, sell liquidate or otherwise dispose dissolve at any time prior to either (i) the commencement of all any material business operations or activities by such Dormant Subsidiary or (ii) the acquisition of any part of its property, asset or assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated other than those assets held by such Dormant Subsidiary for consideration at least equal to the fair market value of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessClosing Date.
Appears in 1 contract
Limitation on Fundamental Changes. Merge Enter into any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion substantially all of its propertiesproperty, assets and business to or assets, or make any other Personmaterial change in its present method of conducting business, except that New Hillhaven or except:
(a) any Subsidiary of the Borrower may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving corporation) or with or into any one or more Wholly Owned Subsidiaries of the Borrower (provided that the Wholly Owned Subsidiary or Subsidiaries shall be the continuing or surviving corporation or other organization) provided, in either case, that the continuing or surviving corporation or other organization must assume the Contracts to which the merged or consolidated Person is a party or otherwise is entitled to the benefits thereof and meet the NRTC's requirements for affiliation or membership in effect at the time of such assignment and assumption and receives the prior written consent of the NRTC and DirecTv, Inc. in accordance with the provisions of the Contracts;
(b) any Wholly Owned Subsidiary may sell, lease, sell transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any part other Wholly Owned Subsidiary of its propertythe Borrower provided that if such assignee assumes any Contracts, assets it must meet the NRTC's requirements for affiliation or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration membership in effect at least equal to the fair market value time of such propertiesassignment and assumption and receives the prior written consent of the NRTC and DirecTv, assets or business Inc. in accordance with the provisions of the Contracts;
(as determined by the Board of Directors of New Hillhaven c) mergers and consolidations in good faithconnection with Permitted Business Acquisitions permitted under subsection 8.10(e), provided -------- that notwithstanding any subject to compliance with subsection 7.10; and
(d) sales and other dispositions of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered permitted by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtednesssubsection 8.7(b).
Appears in 1 contract
Samples: Credit Agreement (Digital Television Services of Kansas LLC)
Limitation on Fundamental Changes. Merge or (a) The Parent Borrower will not consolidate with or merge with or into, or convey, lease or otherwise transfer all or substantially all its assets to, any --------------------------------- other Person, unless:
(i) the resulting, surviving or transferee Person (except as the “Successor Borrower”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Borrower (if not the Parent Borrower or the OpCo Borrower) will expressly permitted assume all the obligations of the Parent Borrower under this Agreement and the Loan Documents to which it is a party by Section 4(eexecuting and delivering to the Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(ii) hereof) unless New Hillhaven is the surviving corporation and, immediately after giving effect to such merger transaction (and treating any Indebtedness that becomes an obligation of the Successor Borrower or consolidationany Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Borrower or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default has will have occurred and is be continuing, or permit any Subsidiary to merge or consolidate with any other Person ;
(except as expressly permitted by Section 4(eiii) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) immediately after giving effect to such transaction, either (A) the Parent Borrower (or, if applicable, the Successor Borrower with respect thereto) could Incur at least $1.00 of additional Indebtedness pursuant to Subsection 8.1(a) or (B) the Consolidated Coverage Ratio of the Parent Borrower (or, if applicable, the Successor Borrower with respect thereto) would equal or exceed the Consolidated Coverage Ratio of the Parent Borrower immediately prior to giving effect to such transaction;
(iv) each Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guaranty in connection with such transaction and (y) any party to any such consolidation or merger) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guaranty (other than any Subsidiary Guaranty that will be discharged or terminated in connection with such transaction);
(v) each Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Guarantee and Collateral Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have by a supplement to the Guarantee and Collateral Agreement or another document or instrument affirmed that its obligations thereunder shall apply to its Guarantee as reaffirmed pursuant to clause (iv) above;
(vi) each mortgagor of a Mortgaged Fee Property (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Guarantee and Collateral Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have affirmed that its obligations under the applicable Mortgage shall apply to its Guarantee as reaffirmed pursuant to clause (iv); and
(vii) the Borrower Representative will have delivered to the Administrative Agent a certificate signed by a Responsible Officer and a legal opinion, each to the effect that such consolidation, merger or transfer complies with the provisions described in this Subsection 8.7(a), provided that (x) in giving such opinion such counsel may rely on such certificate of a Responsible Officer as to compliance with the foregoing clauses (ii) and (iii) of this Subsection 8.7(a) and as to any matters of fact, and (y) no such legal opinion will be required for a consolidation, no Default merger or Event transfer described in Subsection 8.7(d).
(b) Any Indebtedness that becomes an obligation of Default has occurred and is continuingthe Parent Borrower (or, if applicable, any Successor Borrower with respect thereto) or liquidate or dissolve itself any Restricted Subsidiary (or suffer that is deemed to be Incurred by any liquidation or dissolution)Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this Subsection 8.7, or dispose and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with Subsection 8.1.
(c) Upon any transaction involving the Parent Borrower in accordance with Subsection 8.7(a) in which the Parent Borrower is not the Successor Borrower, the Successor Borrower will succeed to, and be substituted for, and may exercise every right and power of, the Parent Borrower under the Loan Documents, and thereafter the predecessor Parent Borrower shall be relieved of or lease or sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets obligations and business to any other Personcovenants under the Loan Documents, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose the predecessor Parent Borrower in the case of a lease of all or substantially all its assets will not be released from the obligation to pay the principal of and interest on the Term Loans.
(d) Clauses (ii) and (iii) of Subsection 8.7(a) will not apply to any transaction in which the Parent Borrower consolidates or merges with or into or transfers all or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of reincorporating or reorganizing the Parent Borrower in another jurisdiction or changing its legal structure to a corporation or other entity or (y) a Restricted Subsidiary of the Parent Borrower so long as all assets of the Parent Borrower and the Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such Restricted Subsidiary) are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof. Subsection 8.7(a) will not apply to (i) any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such propertiesParent Borrower, assets (ii) the Transactions or business (as determined by iii) any transaction in which the Board of Directors of New Hillhaven in good faith)Parent Borrower consolidates with, provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell merges into or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of transfers all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessOpCo Borrower.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4, 10.5 or 10.6, the surviving corporation andBorrower will not and will not permit any of the Restricted Subsidiaries to, after giving effect to such merger consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose Dispose of all or lease substantially all of its business units, assets or sellother properties, or permit except that:
(a) any Subsidiary to dispose of the Borrower or lease any other Person (other than Holdings) may be merged, amalgamated or sell, consolidated with or into the Borrower or the Borrower may Dispose of all or any substantial portion substantially all of its propertiesbusiness units, assets and business to any other properties; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation where the Borrower is not the continuing or surviving Person, except that New Hillhaven the Person formed by or surviving any Subsidiary may leasesuch merger, sell amalgamation or otherwise dispose consolidation (if other than the Borrower) or in connection with a Disposition of all or substantially all of the Borrower’s assets, the transferee of such assets or properties, shall, in each case, be an entity organized or existing under the laws of the United States, any part state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (iii) if such merger, amalgamation, consolidation or Disposition involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation, consolidation, or Disposition, is not a Restricted Subsidiary of the Borrower (A) subject to Section 1.10, no Event of Default under Section 11.1 or Section 11.5 has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition, (B) each Guarantor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have confirmed by a supplement to the Guarantee that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (C) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection of the Liens on the Collateral under the Security Documents, (F) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to the Administrative Agent an opinion of counsel to the effect that such merger, amalgamation, consolidation or Disposition does not breach or result in a default under this Agreement or any other Credit Document and (G) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 or Section 10.6; provided, further, that, if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement (provided, further, that, in the event of a Disposition of all or substantially all of the Borrower’s assets or property to a Successor Borrower (which is not the Borrower) as set forth above and notwithstanding anything to the contrary in Section 13.6(a), if the original Borrower retains any assets or property other than immaterial assets or property after such Disposition, such original Borrower shall remain obligated as a co-Borrower along with the Successor Borrower hereunder);
(b) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into any one or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its propertybusiness units, assets and other properties; provided that, (i) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or the transferee of such assets or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation, consolidation or the transferee of such assets and properties (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Subsidiary Guarantors, if the surviving Person formed by or surviving such merger, amalgamation or consolidation or the transferee of such assets and properties is a Non-Credit Party, then any Indebtedness of any Subsidiary Guarantor assumed by such surviving Person or the transferee of such assets and properties shall be deemed an Incurrence of Indebtedness upon completion of such transaction and such transaction shall be permitted only if such Incurrence is permitted under Section 10.1 of this Agreement (without giving effect to Section 10.1(j) and (iii) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower, (A) subject to Section 1.10, no Event of Default under Section 11.1 or Section 11.5 has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition, (B) the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer stating that such merger, amalgamation, consolidation or Disposition and such supplements to any Credit Document preserve the enforceability of the Guarantees and the perfection and priority of the Liens under the Security Documents and (C) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.4, Section 10.5 or Section 10.6;
(c) any Restricted Subsidiary may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Restricted Subsidiary of the Borrower;
(d) the Transactions may be consummated;
(e) any Restricted Subsidiary may liquidate or dissolve or change its legal form if (x) the Borrower determines in good faith that such liquidation or dissolution or change of legal form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (y) any assets or business not otherwise Disposed of or transferred in accordance with Section 10.4, Section 10.5 or Section 10.6, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Borrower or another Restricted Subsidiary after giving effect to such liquidation or dissolution or change of legal form; and
(includingf) the Borrower and the Restricted Subsidiaries may consummate a merger, without limitationdissolution, Stockliquidation, consolidation, amalgamation or Disposition, the purpose of which is to (i) effect a Disposition permitted pursuant to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such properties, assets or business Section 10.4 (as determined by the Board of Directors of New Hillhaven in good faithother than 10.4(h)), provided -------- that notwithstanding (ii) reorganize or reincorporate any such Person in the United States, any state thereof, the District of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all Columbia or any part of its propertyterritory thereof, assets or business (including, without limitation, Stockiii) encumbered by a Lien effect any Holdings Termination Event in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtedness.accordance with
Appears in 1 contract
Samples: First Lien Credit Agreement (Grocery Outlet Holding Corp.)
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is Sections 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its assets, except that:
(a) the Borrower may merge, consolidate or amalgamate with any substantial portion Person (including any Subsidiary), provided that (i) the Borrower shall be the surviving, continuing or resulting entity or, if the foregoing is not the case, the surviving, continuing, or resulting entity shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Borrowing Base Deficiency (during a Borrowing Base Trigger Period), Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, and (iv) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) the Successor Borrower shall be in compliance, on a Pro Forma Basis with the Financial Performance Covenants, (B) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation (or unless the Successor Borrower is the Borrower) shall have confirmed in a writing in form and substance acceptable to the Administrative Agent that its propertiesGuarantee shall apply to the Successor Borrower’s obligations under this Agreement (and, assets and business during a Borrowing Base Trigger Period, shall have confirmed that its obligations under the Security Documents shall apply to the Successor Borrower’s obligations under this Agreement), (C) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other PersonCredit Document and (E) such merger, except amalgamation, or consolidation shall not occur during an Interim Covenant Period; provided, further, that New Hillhaven if the foregoing 10-Q are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;
(b) any Guarantor may merge, amalgamate or consolidate with (i) any Credit Party (provided that if the Borrower is involved in the case of any such merger, amalgamation or consolidation, the provisions of clause (a) above shall govern) or (ii) any other Person (including any other Subsidiary of the Borrower); provided that (A) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (1) a Restricted Subsidiary shall be the continuing or surviving Person or (2) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (B) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee and any applicable Mortgage, each in form and substance reasonably satisfactory to the Administrative Agent in order for the surviving Person to become a Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties, (C) no Borrowing Base Deficiency (during a Borrowing Base Trigger Period), Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation, and (D) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, (x) such merger, amalgamation or consolidation shall not occur during an Interim Covenant Period and (y) the Borrower shall be in compliance, on a Pro Forma Basis with the Financial Performance Covenants;
(c) any Restricted Subsidiary that is not a Guarantor may leasemerge, sell amalgamate or otherwise dispose consolidate with, or Dispose of all or any part substantially all of its propertyassets to, the Borrower or any other Restricted Subsidiary (provided that if the Borrower is involved in the case of any such merger, amalgamation or consolidation, the provisions of clause (a) above shall govern);
(d) any Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, any assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution; and
(including, without limitation, Stocke) to any Personthe extent that no Borrowing Base Deficiency (during a Borrowing Base Trigger Period), including, without limitation, New Hillhaven Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesDisposition, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business (as determined by Disposition, the Board purpose of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing which is to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary effect a Disposition permitted pursuant to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 10.4.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation andEach Borrower and Guarantor shall not, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, or shall not permit any Subsidiary to merge to, directly or consolidate indirectly,
(a) enter into any merger, consolidation or amalgamation with any other Person (or permit any other Person to merge into or with or consolidate with it, except as expressly permitted by Section 4(e) hereof) unless that (i) any Subsidiary of Parent may be merged, consolidated or amalgamated with or into Parent (provided that Parent shall be the continuing or surviving entity) or with or into any one or more wholly owned Subsidiaries of Parent (provided that the wholly owned Subsidiary or Subsidiaries of Parent shall be the continuing or surviving entity); provided that if a party to such merger, consolidation or amalgamation is a Borrower or Guarantor, the continuing or surviving entity shall be a Borrower or Guarantor, (ii) any Subsidiary of Parent may be merged, consolidated or amalgamated pursuant to a Permitted Acquisition or Permitted Disposition, (iii) Parent may be merged, consolidated or amalgamated with or into a Parent Entity; provided, that, (A) if the Parent Entity shall be the continuing or surviving entity, such Parent Entity shall expressly assume all of the obligations of Parent under this Agreement and the other Financing Agreement to which Parent is the surviving corporation or the consideration received by New Hillhaven a party executed and delivering to Agent a joinder and such other agreements, documents and instruments as Agent may reasonably request, in connection therewith is at least equal a form reasonably satisfactory to the fair market value of Agent (and thereafter shall be deemed to be “NCI Building Systems” and “Parent” for all purposes under this Agreement and such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faithother Financing Agreements) and (iiB) after giving effect to such merger or consolidationthereto, no Default Change of Control shall occur;
(b) sell, issue, assign, lease, license, transfer, abandon or Event of Default has occurred and is continuing, or liquidate or dissolve itself (or suffer any liquidation or dissolution), or otherwise dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sell, all its Equity Interests or any substantial portion of its properties, property or assets and business to any other Person, except for Permitted Dispositions; provided, that, to the extent that New Hillhaven any Disposition of any property or assets constituting Collateral is made as permitted by Section 10.1(a)(ii) or this Section 10.1(b), (including through any Disposition of any Subsidiary owning any such property or assets), other than to a Borrower or Guarantor, or to the extent that Agent and Required Lenders may leaseconsent to any other sale or other Disposition of any property or assets, sell concurrently with, and subject to the satisfaction of the conditions to such sale or otherwise dispose other Disposition (including the receipt of the Net Cash Proceeds related thereto), effective upon the transfer of the title and ownership of such property or assets (including through any Disposition of any Subsidiary), (i) the Lien of Agent on the property or assets for which title and ownership is transferred shall be released and (ii) upon the written request of Administrative Borrower, Agent shall, at Borrowers’ expense, and Lenders hereby authorize Agent to, cause to be filed a UCC financing statement amendment or other release documents and take such other action necessary or reasonably desirable to evidence and effect the release by Agent of such property or assets from its security interest granted hereunder and under any other Financing Agreement and, if there is a Mortgage on such Collateral, execute and deliver to Administrative Borrower a release instrument with respect thereto; or
(c) wind up, liquidate or dissolve except that any Guarantor (other than Parent) or Subsidiary of Parent may wind up, liquidate and dissolve; provided, that, in connection with any such winding up, liquidation or dissolution, (i) any Collateral of the Person so winding up, liquidating or dissolving that is a Borrower or Guarantor shall be duly and validly transferred and assigned to a Borrower or Guarantor and Agent shall maintain and have a perfected Lien upon all such assets and properties as so transferred on the terms and with the priority provided for in the Financing Agreements and (ii) in the case of a Borrower, (A) such Borrower shall not have any property or assets constituting Revolving Loan Priority Collateral and Agent shall have received a Borrowing Base Certificate that does not include any assets of such Borrower as part of its propertythe calculation of the Borrowing Base, assets or business and (including, without limitation, StockB) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to simultaneously with the fair market value commencement of such propertieswinding up, assets liquidation or business (as determined by the Board of Directors of New Hillhaven in good faith)dissolution, provided -------- that notwithstanding its right to borrow hereunder shall automatically terminate and Agent and Lenders shall have no further obligations to make any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NMELoans to, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate provide any Letters of NMECredit for, to any such Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtedness.
Appears in 1 contract
Samples: Loan and Security Agreement (Nci Building Systems Inc)
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is Sections 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its business units, assets or other properties, except that:
(a) any substantial portion Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation with or into the Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the Borrower) shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, and (iv) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) the Successor Borrower shall be in compliance, on a pro forma basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period under such Section as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period, (B) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (C) each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents, (F) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Credit Document and that the Credit Documents are enforceable against the Successor Borrower; and (G) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;
(b) any Subsidiary of the Borrower or any other Person (other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee, the Pledge Agreement and any applicable Mortgage, each in form and substance reasonably satisfactory to the Administrative Agent in order for the surviving Person to become a Guarantor and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties, (iii) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation and (iv) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, (A) the Borrower shall be in compliance, on a pro forma basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period under such Section as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period, (B) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents (if involving a Guarantor) and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5;
(c) any Restricted Subsidiary that is not a Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its propertiesassets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor, (ii) merge, amalgamate or consolidate with or into any other Subsidiary which is not a Guarantor or Dispose of any or all of its assets and business (upon voluntary liquidation or otherwise) to any other PersonSubsidiary that is not a Guarantor; provided that if such Subsidiary Guarantor is not the surviving entity, except that New Hillhaven such merger, amalgamation or consolidation shall be deemed to be, and any such Disposition shall be, an “Investment” and subject to the limitations set forth in Section 10.5 and (iii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor;
(e) any Restricted Subsidiary may leaseliquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, sell or otherwise dispose of all or any part of its property, assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5 or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution; and
(including, without limitation, Stockf) to any Personthe extent that no Borrowing Base Deficiency, including, without limitation, New Hillhaven Default or a Consolidated Subsidiary for consideration at least equal to Event of Default would result from the fair market value consummation of such propertiesDisposition, assets the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or business (as determined by Disposition, the Board purpose of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing which is to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary effect a Disposition permitted pursuant to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessSection 10.4.
Appears in 1 contract
Limitation on Fundamental Changes. Merge Enter into any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or otherwise suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets and business to any other Personor, except that New Hillhaven or any Subsidiary may leasefor Immaterial Subsidiaries, sell or and except to the extent such Disposition would otherwise dispose be permitted by Section 7.5, Dispose of all or any part substantially all of its propertyProperty or business, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated with or into the Borrower, provided that the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary of the Borrower may be merged or consolidated with or into any other Subsidiary of the Borrower, provided that, if any of the parties to such merger or consolidation is a Subsidiary Guarantor, (i) the continuing or surviving corporation shall be a Subsidiary Guarantor or (ii) simultaneously with such transaction, the continuing or surviving corporation shall become a Subsidiary Guarantor, and the Borrower shall, and shall cause its Subsidiaries to, comply with Section 6.9 in connection therewith;
(c) any Subsidiary of the Borrower may Dispose of any or all of its assets (upon voluntary liquidation or business (including, without limitation, Stockotherwise) to the Borrower or any Personof its other Subsidiaries, includingprovided that Dispositions to Designated Subsidiaries by the Borrower and its Domestic Subsidiaries that are not also Designated Subsidiaries shall, without limitation, New Hillhaven or a Consolidated Subsidiary to the extent that the consideration received for consideration at least equal to the assets Disposed of is less than the fair market value of such propertiesassets that would be received from an unaffiliated third party in a bona fide sale on an arms-length basis, assets be deemed to be Investments in such Designated Subsidiaries and subject to the limitations set forth in Section 7.7;
(d) the Borrower and its Subsidiaries may make any Restricted Payments permitted under Section 7.6; and
(e) the Borrower or business any or its Subsidiaries may enter into any merger, consolidation or amalgamation to effectuate any Permitted Acquisition; provided that (as determined by i) if the Board of Directors of New Hillhaven in good faithBorrower is a party to such merger, consolidation or amalgamation, the Borrower shall be the surviving corporation and (ii), provided -------- that notwithstanding subject to the immediately preceding clause (i), if any of the foregoing parties to such merger, consolidation or amalgamation is a Subsidiary Guarantor, (1) the contrarycontinuing or surviving corporation shall be a Subsidiary Guarantor or (2) simultaneously with such transaction, in no event may New Hillhaven lease, sell the continuing or otherwise dispose of or permit any surviving corporation shall become a Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficientGuarantor, and are applied directlythe Borrower shall, to repay such Indebtednessand shall cause its Subsidiaries to, comply with Section 6.9 in connection therewith.
Appears in 1 contract
Limitation on Fundamental Changes. Merge The Borrower will not, and will not permit any of its Restricted Subsidiaries to, enter into any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion of substantially all its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its propertyunits, assets or business other properties, except that: (includinga) so long as no Event of Default has occurred and is continuing or would result therefrom, without limitationany Subsidiary of the Borrower or any other Person may be merged, Stockamalgamated or consolidated with or into the Borrower; provided that the Borrower shall be the continuing or surviving corporation; (b) so long as no Event of Default has occurred and is continuing or would result therefrom, any Subsidiary of the Borrower or any other Person (in each case, other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any Personmerger, includingamalgamation or consolidation involving one or more Guarantors, without limitationa Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, New Hillhaven amalgamation or consolidation and if the surviving Person is not already a Consolidated Subsidiary for consideration at least equal Guarantor, such Person shall execute a supplement to the fair market value of such propertiesGuarantee and the relevant Security Documents in form and substance reasonably satisfactory to the Administrative Agent in order to become a Guarantor and pledgor, assets or business (mortgagor and grantor, as determined by applicable, thereunder for the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any benefit of the foregoing Secured Parties, and (iii) the Borrower shall have delivered to the contraryAdministrative Agent an officer’s certificate stating that such merger, in no event may New Hillhaven lease, sell amalgamation or otherwise dispose of or permit consolidation and any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, such supplements to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless Security Document preserve the cash portion enforceability of the proceeds from such sale are sufficient, Guarantees and are applied directly, to repay such Indebtedness.the perfection and priority of the Liens under the applicable Security Documents; (c) the Transactions may be consummated; -131-#89847286v15
Appears in 1 contract
Limitation on Fundamental Changes. Merge Enter into any merger, consolidation or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of substantially all or any part of its property, business or assets or all or substantially all of the mortgaged property under an Indenture, acquire any Capital Stock of another Person, or acquire assets of another Person (other than any Subsidiary having Non-Recourse Debt or any Excluded Subsidiary) constituting all or a material part of a business (includingor all or substantially all of the assets of such Person), without limitationexcept any Person (other than any Excluded Subsidiary) may be merged or consolidated with or into the Borrower, Stockor the Borrower may acquire assets or Capital Stock of another Person (other than any Excluded Subsidiary) to any Person, including, without limitation, New Hillhaven constituting all or a Consolidated Subsidiary for consideration at least equal to material part of a business (or all or substantially all the fair market value assets of such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faithPerson), in each case provided -------- that notwithstanding any (a) the Borrower shall be the continuing or surviving corporation, (b) as of the foregoing consummation of, and after giving effect to, such transaction, no Default or Event of Default shall then exist, (c) the Borrower shall not acquire, directly or indirectly, any Capital Stock or assets of an Excluded Subsidiary (except as expressly permitted pursuant to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose Section 6.8) nor any assets of or permit any a Subsidiary subject to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Non-Recourse Debt, (d) such transaction relates solely to the acquisition of domestic regulated utility businesses and assets, (e) if the Borrower shall acquire Capital Stock of another Person, such Person shall thereupon be a Subsidiary, and (f) the aggregate principal amount of Indebtedness guaranteed incurred or assumed by the Borrower and the Subsidiaries in connection with such transaction (together with the aggregate principal amount of Indebtedness of such acquired Person) shall not exceed sixty percent (60%) of the lesser of the fair value or cost of such acquired assets (and, to the extent such Indebtedness is incurred in connection with such transaction or in effect guaranteed by NME contemplation of such transaction, such Indebtedness shall not have a scheduled maturity, or an Affiliate of NMErequire any principal payment, prior to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless six months after the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessMaturity Date).
Appears in 1 contract
Samples: Credit Agreement (Northwestern Corp)
Limitation on Fundamental Changes. Merge or (a) The Parent Borrower will not consolidate with or merge with or into, or convey, lease or otherwise transfer all or substantially all its assets to, any --------------------------------- other Person, unless:
(i) the resulting, surviving or transferee Person (except as the “Successor Borrower”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Borrower (if not the Parent Borrower or the OpCo Borrower) will expressly permitted assume all the obligations of the Parent Borrower under this Agreement and the Loan Documents to which it is a party by Section 4(eexecuting and delivering to the Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(ii) hereof) unless New Hillhaven is the surviving corporation and, immediately after giving effect to such merger transaction (and treating any Indebtedness that becomes an obligation of the Successor Borrower or consolidationany Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Borrower or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default has will have occurred and is be continuing, or permit any Subsidiary to merge or consolidate with any other Person ;
(except as expressly permitted by Section 4(eiii) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) immediately after giving effect to such transaction, either (A) the Parent Borrower (or, if applicable, the Successor Borrower with respect thereto) could Incur at least $1.00 of additional Indebtedness pursuant to Subsection 8.1(a) or (B) the Consolidated Coverage Ratio of the OpCoParent Borrower (or, if applicable, the Successor Borrower with respect thereto) would equal or exceed the Consolidated Coverage Ratio of the OpCoParent Borrower immediately prior to giving effect to such transaction;
(iv) each Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guaranty in connection with such transaction and (y) any party to any such consolidation or merger) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guaranty (other than any Subsidiary Guaranty that will be discharged or terminated in connection with such transaction);
(v) each Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Guarantee and Collateral Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have by a supplement to the Guarantee and Collateral Agreement or another document or instrument affirmed that its obligations thereunder shall apply to its Guarantee as reaffirmed pursuant to clause (iv) above;
(vi) each mortgagor of a Mortgaged Fee Property (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Guarantee and Collateral Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have affirmed that its obligations under the applicable Mortgage shall apply to its Guarantee as reaffirmed pursuant to clause (iv); and
(vii) the Borrower Representative will have delivered to the Administrative Agent a certificate signed by a Responsible Officer and a legal opinion, each to the effect that such consolidation, merger or transfer complies with the provisions described in this Subsection 8.7(a), provided that (x) in giving such opinion such counsel may rely on such certificate of a Responsible Officer as to compliance with the foregoing clauses (ii) and (iii) of this Subsection 8.7(a) and as to any matters of fact, and (y) no such legal opinion will be required for a consolidation, no Default merger or Event transfer described in Subsection 8.7(d).
(b) Any Indebtedness that becomes an obligation of Default has occurred and is continuingthe Parent Borrower (or, if applicable, any Successor Borrower with respect thereto) or liquidate or dissolve itself any Restricted Subsidiary (or suffer that is deemed to be Incurred by any liquidation or dissolution)Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this Subsection 8.7, or dispose and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with Subsection 8.1.
(c) Upon any transaction involving the Parent Borrower in accordance with Subsection 8.7(a) in which the Parent Borrower is not the Successor Borrower, the Successor Borrower will succeed to, and be substituted for, and may exercise every right and power of, the Parent Borrower under the Loan Documents, and thereafter the predecessor Parent Borrower shall be relieved of or lease or sell, or permit any Subsidiary to dispose of or lease or sell, all or any substantial portion of its properties, assets obligations and business to any other Personcovenants under the Loan Documents, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose the predecessor Parent Borrower in the case of a lease of all or substantially all its assets will not be released from the obligation to pay the principal of and interest on the Term Loans.
(d) Clauses (ii) and (iii) of Subsection 8.7(a) will not apply to any transaction in which the Parent Borrower consolidates or merges with or into or transfers all or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of reincorporating or reorganizing the Parent Borrower in another jurisdiction or changing its legal structure to a corporation or other entity or (y) a Restricted Subsidiary of the Parent Borrower so long as all assets of the Parent Borrower and the Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such Restricted Subsidiary) are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof. Subsection 8.7(a) will not apply to (i) any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value of such propertiesParent Borrower, assets (ii) the Transactions or business (as determined by iii) any transaction in which the Board of Directors of New Hillhaven in good faith)Parent Borrower consolidates with, provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell merges into or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of transfers all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessOpCo Borrower.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 9.4 or 9.5, the surviving corporation andObligors will not, after giving effect to such merger and will not permit any of the Borrower Subsidiaries to, enter into any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion of substantially all its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its propertyunits, assets or business other properties, except that:
(includinga) so long as no Default or Event of Default would result therefrom, without limitationany Borrower Subsidiary or any other Person may be merged, Stockamalgamated or consolidated with or into an Obligor, provided that (i) to except as permitted by subclause (ii) below, a Credit Party shall be the continuing or surviving corporation, (ii) if the Person formed by or surviving any such merger, amalgamation or consolidation involving an Obligor is not such Obligor (such surviving Person, includingas the case may be, without limitationbeing herein referred to as the “Successor Borrower”), New Hillhaven such Successor Borrower shall expressly assume all the obligations of such Obligor under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) each applicable Obligor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Credit Documents confirmed that its obligations under the Credit Documents continue to apply to such Successor Borrower’s obligations under this Agreement, (v) the Investment resulting from such merger or consolidation, shall be permitted by Section 9.5, (v) if the Successor Borrower is a Borrower, it must be incorporated in a jurisdiction in which another Borrower is already incorporated unless all of the Lenders have consented to such Successor Borrower being incorporated in a different jurisdiction; and (vii) the Successor Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer stating that such merger or consolidation complies with this Agreement (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Obligor under this Agreement);
(b) any Person may be merged, amalgamated or consolidated with or into an Obligor or any one or more Borrower Subsidiaries, provided that (i) either (x) such merger amalgamation or consolidation constitutes a Disposition permitted by Section 9.4 or (y) an Obligor or a Consolidated Borrower Subsidiary for consideration at least equal shall be the continuing or surviving Person and the Investment resulting from such merger, amalgamation or consolidation is permitted by Section 9.5, (ii) in the case of any merger, amalgamation or consolidation in which an Obligor is the surviving Person, such Obligor shall execute any supplement to this Agreement and the Security Documents, as applicable, in form and substance reasonably satisfactory to the fair market value of such propertiesAdministrative Agent in order to preserve and protect the Liens on the Collateral securing the applicable Obligations, assets or business (as determined by iii) if the Board of Directors of New Hillhaven surviving Person is a Borrower, it must be incorporated in good faith), provided -------- that notwithstanding any a jurisdiction in which another Borrower is already incorporated unless all of the foregoing Lenders have consented to such surviving Person being incorporated in a different jurisdiction and (iii) the Administrative Borrower shall have delivered to the contraryAdministrative Agent an officers’ certificate stating that such merger, in no event may New Hillhaven lease, sell amalgamation or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtedness.consolidation complies with this Agreement. 942882452.15
Appears in 1 contract
Samples: Abl Credit Agreement (Univar Inc.)
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4, 10.5 or 10.6, the surviving corporation andBorrower will not and will not permit any of the Restricted Subsidiaries to, after giving effect to such merger consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose Dispose of all or lease substantially all of its business units, assets or sellother properties, or permit except that:
(a) any Subsidiary to dispose of the Borrower or lease any other Person may be merged, amalgamated or sell, consolidated with or into the Borrower or the Borrower may Dispose of all or any substantial portion substantially all of its propertiesbusiness units, assets and business to any other properties; provided that (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger, amalgamation or consolidation where the Borrower is not the continuing or surviving Person, except that New Hillhaven the Person formed by or surviving any Subsidiary may leasesuch merger, sell amalgamation or otherwise dispose consolidation (if other than the Borrower) or in connection with a Disposition of all or substantially all of the Borrower’s assets, the transferee of such assets or properties, shall, in each case, be an entity organized or existing under the laws of the United States, any part state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (iii) if such merger, amalgamation, consolidation or Disposition involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation, consolidation, or Disposition, is not a Restricted Subsidiary of the Borrower (A) subject to Section 1.10, no Event of Default has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition, (B) each Guarantor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have confirmed by a supplement to the Guarantee that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (C) each Subsidiary grantor, unless it is the other party to such merger, amalgamation, consolidation or Disposition or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) [reserved], (E) the Borrower shall have delivered to the Administrative Agent (1) an officer’s certificate stating that such merger, amalgamation, consolidation or Disposition and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection of the Liens on the Collateral under the Security Documents and (2) documentation and other information reasonably requested by the Administrative Agent or any Lender that is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT ACT, (F) if reasonably requested by the Administrative Agent, the Borrower shall be required to deliver to the Administrative Agent an opinion of counsel to the effect that such merger, amalgamation, consolidation or Disposition does not breach or result in a default under this Agreement or any other Credit Document and (G) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5 or Section 10.6; provided, further, that, if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement (provided, further, that, in the event of a Disposition of all or substantially all of the Borrower’s assets or property to a Successor Borrower (which is not the Borrower) as set forth above and notwithstanding anything to the contrary in Section 13.6(a), if the original Borrower retains any assets or property other than immaterial assets or property after such Disposition, such original Borrower shall remain obligated as a co-Borrower along with the Successor Borrower hereunder);
(b) any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into any one or more Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its propertybusiness units, assets and other properties; provided that, (i) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or the transferee of such assets or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation, consolidation or the transferee of such assets and properties (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Subsidiary Guarantors, either (x) the surviving Person formed by or surviving such merger, amalgamation or consolidation or the transferee of such assets and properties shall be the Borrower or a Subsidiary Guarantor or (y) the Borrower shall have capacity under Section 10.5 to make the Investment in such surviving Person (and shall be deemed to have made an Investment in such surviving Person) in an amount equal to the Fair Market Value of the Borrower’s Investment in such Subsidiary Guarantor and (iii) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower, (A) subject to Section 1.10, no Event of Default has occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition, (B) the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer stating that such merger, amalgamation, consolidation or Disposition and such supplements to any Credit Document preserve the enforceability of the Guarantees and the perfection and priority of the Liens under the Security Documents and (C) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.4, Section 10.5 or Section 10.6;
(c) any Restricted Subsidiary may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary, provided that if the surviving Person formed by or surviving such merger, amalgamation or consolidation is a Non-Credit Party, then such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or be otherwise permitted under Section 10.4, Section 10.5 or Section 10.6 of this Agreement and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Restricted Subsidiary of the Borrower, provided that if such Restricted Subsidiary Disposing of any or all of its assets is a Subsidiary Guarantor Disposing of such assets to a Non-Credit Party, then such Disposition shall be otherwise permitted under Section 10.4, Section 10.5 or Section 10.6 of this Agreement;
(d) [reserved];
(e) any Restricted Subsidiary may liquidate or dissolve or change its legal form if (x) the Borrower determines in good faith that such liquidation or dissolution or change of legal form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (y) any assets or business not otherwise Disposed of or transferred in accordance with Section 10.4, Section 10.5 or Section 10.6, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Borrower or another Restricted Subsidiary after giving effect to such liquidation or dissolution or change of legal form;
(includingf) the Borrower and the Restricted Subsidiaries may consummate a merger, without limitationdissolution, Stockliquidation, consolidation, amalgamation or Disposition, the purpose of which is to (i) effect a Disposition permitted pursuant to Section 10.4 (other than 10.4(h)), (ii) reorganize or reincorporate any Personsuch Person in the United States, includingany state thereof, without limitationthe District of Columbia or any territory thereof, New Hillhaven (iii) [reserved] or (iv) convert into a Consolidated Subsidiary for consideration at least equal to Person organized or existing under the fair market value laws of the jurisdiction of organization of such propertiesPerson or another jurisdiction of the United States, assets any state thereof, the District of Columbia or business (as determined by the Board of Directors of New Hillhaven in good faith)any territory thereof; provided that, provided -------- that notwithstanding with respect to any of the foregoing actions described in clauses (ii) and (iv) above, the Borrower or applicable Restricted Subsidiary shall have complied with Section 4.2 of the Security Agreement; and
(g) the Borrower and the Restricted Subsidiaries may effect the formation, dissolution, liquidation or Disposition of any Restricted Subsidiary in connection with an LLC Division; provided that upon formation of a Divided LLC pursuant to such LLC Division, the Borrower has complied with Section 9.10 to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such Indebtednessextent applicable.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or (a) The Parent Borrower will not consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, any --------------------------------- other Person (except as including pursuant to a Division), unless:
(i) the resulting, surviving or transferee Person (the “Successor Company”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Parent Borrower) will expressly permitted assume all the obligations of the Parent Borrower under this Agreement and the Loan Documents to which it is a party by Section 4(eexecuting and delivering to the Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(ii) hereof) unless New Hillhaven is the surviving corporation and, immediately after giving effect to such merger transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or consolidationany Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default has will have occurred and is be continuing, or permit any Subsidiary to merge or consolidate with any other Person ;
(except as expressly permitted by Section 4(eiii) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) immediately after giving effect to such merger or consolidationtransaction, no Default or Event the Parent Borrower (or, if applicable, the Successor Company with respect thereto) could Incur at least $1.00 of Default has occurred additional Indebtedness pursuant to subsection 8.1(a);
(iv) each applicable Subsidiary Borrower and is continuing, or liquidate or dissolve itself Guarantor (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit other than (x) any Subsidiary to dispose of Borrower and Subsidiary Guarantor that will be released from its obligations under this Agreement or lease or sell, all or its Subsidiary Guarantee in connection with such transaction and (y) any substantial portion of its properties, assets and business party to any such consolidation or merger) shall have delivered a joinder or other Persondocument or instrument in form reasonably satisfactory to the Administrative Agent, except that New Hillhaven confirming its obligations as applicable under this Agreement or its Subsidiary Guarantee (other than obligations under this Agreement or any Subsidiary may lease, sell Guarantee that will be discharged or otherwise dispose terminated in connection with such transaction)(if a Subsidiary Guarantor) or guarantee of all or the obligations of the Parent Borrower under the ABL Loan Documents pursuant to the Guarantee and Collateral Agreement (if any part of its property, assets or business other Guarantor);
(including, without limitation, Stockv) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal the extent required to be Collateral pursuant to the fair market value terms of such propertiesthe Security Documents and this Agreement, assets or business (as determined the Collateral owned by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of Successor Company will (a) continue to constitute Collateral under the foregoing Security Documents and (b) be subject to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME the Collateral Agent; and
(vi) the Parent Borrower will have delivered to the Administrative Agent a certificate signed by a Responsible Officer and a legal opinion each to the effect that such consolidation, merger or transfer complies with the provisions described in this paragraph, provided that (x) in giving such opinion such counsel may rely on such certificate of such Responsible Officer as to compliance with the foregoing clauses (ii) and (iii) of this subsection 8.3(a) and as to any matters of fact, and (y) no such legal opinion will be required for a consolidation, merger or transfer described in clause (d) of this subsection 8.3.
(b) Any Indebtedness that becomes an obligation of the Parent Borrower (or, if applicable, the Successor Company with respect thereto) or any Restricted Subsidiary (or that is deemed to be Incurred by any Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this subsection 8.3, and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with subsection 8.1.
(c) Upon any transaction involving the Parent Borrower in accordance with subsection 8.3(a) in which the Parent Borrower is not the Successor Company, the Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Parent Borrower under the Loan Documents, and thereafter the predecessor Parent Borrower shall be relieved of all obligations and covenants under this Agreement, except that the predecessor Parent Borrower in the case of a lease of all or substantially all its assets will not be released from the obligation to pay the principal of and interest on the Loans.
(d) Clauses (ii) and (iii) of subsection 8.3(a) will not apply to any transaction in which the Parent Borrower consolidates or merges with or into or transfers all or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of NME, reincorporating or by reorganizing the Parent Borrower in another jurisdiction or changing its legal structure to a Lien securing Indebtedness guaranteed corporation or in effect guaranteed by NME other entity or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or (y) a Consolidated Subsidiary, unless the cash portion Restricted Subsidiary of the proceeds from Parent Borrower so long as all assets of the Parent Borrower and its Restricted Subsidiaries immediately prior to such sale transaction (other than Capital Stock of such Restricted Subsidiary) are sufficientowned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof. Subsection 8.3(a) will not apply to (1) any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its assets to the Parent Borrower (and are applied directly, to repay such Indebtednessfor the avoidance of doubt the Parent Borrower is the surviving entity) or (2) the Transactions.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with The Borrower will not enter into any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingliquidate, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion of substantially all its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its propertyunits, assets or business other properties, except that:
(includinga) any Subsidiary of the Borrower or any other Person may be merged or consolidated (including by way of liquidation or winding up) with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving entity or, without limitationso long as after giving effect to such merger or consolidation such Person's debt rating shall be in "Category 6" or higher, Stockas determined pursuant to the definition of "Applicable Margin", the Person formed by or surviving any such merger or consolidation (if other than the Borrower) to shall be an entity organized or existing under the laws of the United States or any State thereof, (the Borrower or such Person, includingas the case may be, without limitationbeing herein referred to as the "SUCCESSOR BORROWER"), New Hillhaven or (ii) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement pursuant to a Consolidated Subsidiary for consideration at least equal supplement hereto in form and substance reasonably satisfactory to the fair market value Administrative Agent, (iii) no Default or Event of Default is then existing and no Default or Event of Default would result from the consummation of such propertiesmerger or consolidation, assets (iv) the Borrower shall be in compliance, on a pro forma basis after giving effect to such merger or business (consolidation, with the covenant set forth in Section 9.4 as determined by such covenant is recomputed as at the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any last day of the foregoing most recently ended Test Period under each such Section as if such merger or consolidation had occurred on the first day of such Test Period, and (v) the Borrower shall have delivered to the contraryAdministrative Agent an officer's certificate, in form and substance reasonably satisfactory to the Administrative Agent, certifying the compliance referred to in clause (iv) above and stating that such merger or consolidation and such supplement to this Agreement comply with this Agreement and a legal opinion (in form and substance reasonably satisfactory to the Administrative Agent) with respect to this Agreement to be delivered, if any, pursuant to clause (ii) above; provided further that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement; and
(b) the Borrower may enter into any merger or consolidation for the purpose of changing its organizational form from a corporation to a limited liability company or from a limited liability company to a corporation; provided that such change has no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless adverse affect on the cash portion rights of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessFinance Parties.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except Except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is 10.4 or 10.5, the surviving corporation andBorrower will not, after giving effect to such merger and will not permit any of the Restricted Subsidiaries to, consummate any merger, consolidation or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidationliquidate, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or sell, or permit any Subsidiary to dispose of or lease or sellDispose of, all or substantially all its business units, assets or other properties, except that:
(a) any substantial portion Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving Person (and the Borrower shall remain an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia) or, in the case of a merger, amalgamation or consolidation with or into the Borrower, the Person formed by or surviving any such merger, amalgamation or consolidation shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) no Event of Default has occurred and is continuing at the date of such merger, amalgamation or consolidation or would result from such consummation of such merger, amalgamation or consolidation, (iv) such merger, amalgamation or consolidation does not adversely affect the Collateral in any material respect, (v) if such merger, amalgamation or consolidation involves the Borrower and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Subsidiary of the Borrower (A) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guarantee confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (B) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Credit Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (C) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (D) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to the Credit Documents preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Security Documents and as to the matters of the nature referred to in Section 6(c), (E) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Credit Document and as to such other matters regarding the Successor Borrower and the Credit Documents as the Administrative Agent or its counsel may reasonably request; provided, further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement and (F) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; (vi) the Administrative Agent shall have received at least five (5) days prior to the date of such merger, amalgamation or consolidation all documentation and other information about such Subsidiary or other Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Administrative Agent; and (vii) such Subsidiary or other Person shall have executed a customary joinder to any then-existing Customary Intercreditor Agreement;
(b) any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, unless otherwise permitted by Section 10.5, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall execute a supplement to the Guarantee, the Collateral Agreement and any applicable Mortgage, and a joinder to the Intercompany Note and any then-existing Customary Intercreditor Agreement, in form and substance reasonably satisfactory to the Collateral Agent in order for the surviving Person to become a Guarantor, and pledgor, mortgagor and grantor of Collateral for the benefit of the Secured Parties and to acknowledge and agree to the terms of the Intercompany Note and any then-existing Customary Intercreditor Agreement, (iii) no Default or Event of Default has occurred and is continuing on the date of such merger, amalgamation or consolidation or would result from the consummation of such merger, amalgamation or consolidation, (iv) if such merger, amalgamation or consolidation involves a Subsidiary and a Person that, prior to the consummation of such merger, amalgamation or consolidation, is not a Restricted Subsidiary of the Borrower, (A) the Borrower shall be in compliance with the Leverage Ratio Covenant on a Pro Forma Basis immediately after giving effect to such merger, amalgamation or consolidation, (B) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and such supplements to any Credit Document preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the Collateral Agreement and (C) such merger, amalgamation or consolidation shall comply with all the conditions set forth in the definition of the term “Permitted Acquisition” or is otherwise permitted under Section 10.5; and (v) the Administrative Agent shall have received at least five (5) days prior to the date of such merger, amalgamation or consolidation all documentation and other information about such Subsidiary or other Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested by the Administrative Agent or any Lender;
(c) any Restricted Subsidiary that is not a Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted Subsidiary and (ii) Dispose of any or all of its propertiesassets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Subsidiary Guarantor may (i) merge, amalgamate or consolidate with or into any other Subsidiary Guarantor, (ii) merge, amalgamate or consolidate with or into any other Subsidiary which is not a Guarantor or Dispose of any or all of its assets and business (upon voluntary liquidation or otherwise) to any other PersonSubsidiary that is not a Guarantor so long as after giving effect to such transaction the Collateral Coverage Minimum would be satisfied and the Borrower shall be in compliance with Section 9.11 on a Pro Forma Basis; provided that if such Subsidiary Guarantor is not the surviving entity, except that New Hillhaven such merger, amalgamation or consolidation shall be deemed to be, and any such Disposition shall be, an “Investment” and subject to the limitations set forth in Section 10.5 and (iii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor;
(e) any Restricted Subsidiary may leaseliquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit Party, sell or otherwise dispose of all or any part of its property, assets or business of such Restricted Subsidiary not otherwise Disposed of or transferred in accordance with Section 10.4 or 10.5, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Credit Party after giving effect to such liquidation or dissolution;
(includingf) the Borrower and its Restricted Subsidiaries may consummate the Transactions;
(g) the Borrower and the Restricted Subsidiaries may consummate a merger, without limitationdissolution, Stockliquidation, amalgamation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 10.4 or an Investment permitted by Section 10.5; and
(h) any merger the sole purpose of which is to any Person, including, without limitation, New Hillhaven reincorporate or reorganize a Consolidated Subsidiary for consideration at least equal to Credit Party in another jurisdiction in the fair market United States shall be permitted as long as such merger does not adversely affect the value of such properties, assets or business (as determined the Collateral in any material respect and the surviving entity assumes all Obligations of the applicable Credit Parties under the Credit Documents and delivers any applicable information requested by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all Administrative Agent or any part of its propertyLender under applicable “know your customer” and anti-money laundering rules and regulations, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless including the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessPatriot Act.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or consolidate with any --------------------------------- other Person (except as expressly permitted by Section 4(ea) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, or permit Permit any Subsidiary to merge enter into any merger, consolidation or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingamalgamation, or liquidate liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), unless (i) following any such merger, consolidation or dispose amalgamation, a Subsidiary continues as the surviving Person, (ii) such merger, consolidation or amalgamation is with the Borrower and the Borrower continues as the surviving Person, (iii) such merger, consolidation or amalgamation occurs among Subsidiaries, with a Subsidiary continuing as the surviving Person, (iv) in connection with any liquidation, wind-up or dissolution, the relevant Subsidiary sells, disposes or otherwise distributes all of its assets to the Borrower and/or another Subsidiary and each other holder of such relevant Subsidiary’s Capital Stock ratably according to their respective holdings of the type of Capital Stock (or according to any applicable governing document or management agreement) in respect of which such sale, disposition or distribution is being made, (v) any merger, sale, disposition or distribution of or lease or sellby any Subsidiary, to the extent such transaction is permitted by Section 7.5, or permit (vi) any liquidation, wind-up or dissolution of a Subsidiary that, in the Borrower’s good faith determination, is in the Borrower’s best interest and could not reasonably be expected to dispose have a Material Adverse Effect.
(b) Enter into any merger, consolidation or amalgamation or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), unless following any such merger, consolidation or amalgamation, the Borrower continues as the surviving Person; provided that the Borrower may reorganize or enter into any merger, consolidation or amalgamation with another Person in a transaction in which such other Person is the surviving entity if (i) no Event of or lease or sellDefault has occurred and is continuing, all (ii) such other Person is organized and validly existing under the laws of the United States or any substantial portion State thereof and by operation of its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell law or otherwise dispose assumes all obligations of all the Borrower hereunder and such assumption is evidenced by an opinion of counsel to such other Person satisfactory in form and substance to the Administrative Agent in its reasonable discretion, (iii) the Borrower has demonstrated to the reasonable satisfaction of the Administrative Agent that, after giving effect to such reorganization, merger or any part consolidation, the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.1, (iv) such other Person is engaged in business of its propertythe same general type as conducted by the Borrower on the Closing Date, assets or business and (including, without limitation, Stockv) the Lenders shall be reasonably satisfied with the documentation and other information so requested in order to any Personcomply with their obligations under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, New Hillhaven the PATRIOT Act and (vi) if the Borrower or such other Person qualifies as a Consolidated Subsidiary for consideration at least equal to “legal entity customer” under the fair market value of Beneficial Ownership Regulation, the Borrower or such properties, assets or business (as determined by the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NMEother Person shall have delivered, to any Personeach Lender that so requests, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessBeneficial Ownership Certification.
Appears in 1 contract
Limitation on Fundamental Changes. Merge or (a) The Borrower will not consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, any --------------------------------- other Person, unless:
(i) the resulting, surviving or transferee Person (except as the “Successor Company”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Borrower) will expressly permitted assume all the obligations of the Borrower under the Term Loans and this Agreement by Section 4(eexecuting and delivering to the Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(ii) hereof) unless New Hillhaven is the surviving corporation and, immediately after giving effect to such merger transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or consolidationany Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default has will have occurred and is be continuing, or permit any Subsidiary to merge or consolidate with any other Person ;
(except as expressly permitted by Section 4(eiii) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) immediately after giving effect to such merger or consolidationtransaction, no Default or Event either (A) the Successor Company could Incur at least $1.00 of Default has occurred and is continuing, or liquidate or dissolve itself (or suffer any liquidation or dissolutionadditional Indebtedness pursuant to subsection 7.2(a), or dispose (B) the Consolidated Coverage Ratio of the Borrower (or, if applicable, the Successor Company with respect thereto) would equal or lease or sell, or permit exceed the Consolidated Coverage Ratio of the Borrower immediately prior to giving effect to such transaction;
(iv) each applicable Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guarantee in connection with such transaction and (y) any party to dispose any such consolidation or merger) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guarantee (other than any Subsidiary Guarantee that will be discharged or terminated in connection with such transaction); and
(v) the Borrower will have delivered to the Administrative Agent a certificate signed by a Responsible Officer and a legal opinion each to the effect that such consolidation, merger or transfer complies with the provisions described in this paragraph, provided that (x) in giving such opinion such counsel may rely on such certificate of such Responsible Officer as to compliance with the foregoing clauses (ii) and (iii) of this subsection 7.4(a) and as to any matters of fact, and (y) no such legal opinion will be required for a consolidation, merger or lease or sell, all transfer described in the last paragraph of this covenant.
(b) Any Indebtedness that becomes an obligation of the Successor Company or any substantial portion Restricted Subsidiary (or that is deemed to be Incurred by any Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of its propertiesany such transaction undertaken in compliance with this subsection 7.4, assets and business any Refinancing Indebtedness with respect thereto, shall be deemed to any other Personhave been Incurred in compliance with subsection 7.2.
(c) The Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement, and thereafter the predecessor Borrower shall be relieved of all obligations and covenants under this Agreement, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose the predecessor Borrower in the case of a lease of all or substantially all its assets will not be released from the obligation to pay the principal of and interest on the Term Loans.
(d) Subsections 7.4(a)(ii) and (iii) will not apply to any transaction in which (1) any Restricted Subsidiary consolidates with, merges into or transfers all or part of its property, assets or business (including, without limitation, Stock) to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary for consideration at least equal to the fair market value Borrower or (2) the Borrower consolidates or merges with or into or transfers all or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of reincorporating or reorganizing the Borrower in another jurisdiction or changing its legal structure to a corporation or other entity or (y) a Restricted Subsidiary of the Borrower so long as all assets of the Borrower and the Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such properties, assets or business (as determined Restricted Subsidiary) are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any of the foregoing consummation thereof. Subsection 7.4(a) will not apply to the contrary, in no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless the cash portion of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessTransactions.
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Limitation on Fundamental Changes. Merge or consolidate with The Borrower will not enter into any --------------------------------- other Person (except as expressly permitted by Section 4(e) hereof) unless New Hillhaven is the surviving corporation and, after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuingliquidate, or permit any Subsidiary to merge or consolidate with any other Person (except as expressly permitted by Section 4(e) hereof) unless (i) such Subsidiary is the surviving corporation or the consideration received by New Hillhaven in connection therewith is at least equal to the fair market value of such Subsidiary (as determined by the Board of Directors of New Hillhaven in good faith) and (ii) after giving effect to such merger or consolidation, no Default or Event of Default has occurred and is continuing, or liquidate wind up or dissolve itself (or suffer any liquidation or dissolution), or dispose of or lease or convey, sell, lease, assign, transfer or permit any Subsidiary to otherwise dispose of or lease or sellof, all or any substantial portion of substantially all its properties, assets and business to any other Person, except that New Hillhaven or any Subsidiary may lease, sell or otherwise dispose of all or any part of its propertyunits, assets or business other properties, except that:
(includinga) any Subsidiary of the Borrower or any other Person may be merged or consolidated (including by way of liquidation or winding up) with or into the Borrower; provided that (i) the Borrower shall be the continuing or surviving entity or, without limitationso long as after giving effect to such merger or consolidation such Person’s debt rating shall be in “Category 6” or higher, Stockas determined pursuant to the definition of “Applicable Margin”, the Person formed by or surviving any such merger or consolidation (if other than the Borrower) to shall be an entity organized or existing under the laws of the United States or any State thereof, (the Borrower or such Person, includingas the case may be, without limitationbeing herein referred to as the “Successor Borrower”), New Hillhaven or (ii) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement pursuant to a Consolidated Subsidiary for consideration at least equal supplement hereto in form and substance reasonably satisfactory to the fair market value Administrative Agent, (iii) no Default or Event of Default is then existing and no Default or Event of Default would result from the consummation of such propertiesmerger or consolidation, assets (iv) the Borrower shall be in compliance, on a pro forma basis after giving effect to such merger or business (consolidation, with the covenants set forth in Section 8.4 as determined by such covenants are recomputed as at the Board of Directors of New Hillhaven in good faith), provided -------- that notwithstanding any last day of the foregoing most recently ended Test Period under each such Section as if such merger or consolidation had occurred on the first day of such Test Period, and (v) the Borrower shall have delivered to the contraryAdministrative Agent an officer’s certificate, in form and substance reasonably satisfactory to the Administrative Agent, certifying the compliance referred to in clause (iv) above and stating that such merger or consolidation and such supplement to this Agreement comply with this Agreement and a legal opinion (in form and substance reasonably satisfactory to the Administrative Agent) with respect to this Agreement to be delivered, if any, pursuant to clause (ii) above; provided further that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement; and
(b) the Borrower may enter into any merger or consolidation for the purpose of changing its organizational form from a corporation to a limited liability company or from a limited liability company to a corporation; provided that such change has no event may New Hillhaven lease, sell or otherwise dispose of or permit any Subsidiary to lease, sell or otherwise dispose of all or any part of its property, assets or business (including, without limitation, Stock) encumbered by a Lien in favor of NME or an Affiliate of NME, or by a Lien securing Indebtedness guaranteed or in effect guaranteed by NME or an Affiliate of NME, to any Person, including, without limitation, New Hillhaven or a Consolidated Subsidiary, unless adverse affect on the cash portion rights of the proceeds from such sale are sufficient, and are applied directly, to repay such IndebtednessFinance Parties.
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