Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolve.
Appears in 3 contracts
Samples: Credit Agreement (MedEquities Realty Trust, Inc.), Credit Agreement (MedEquities Realty Trust, Inc.), Credit Agreement (MedEquities Realty Trust, Inc.)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of (including, without limitation, by way of an LLC Division) all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required LendersAgent. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower CVOP II (it being understood and agreed that in any such event the Borrower CVOP II will be the surviving Person), (ii) from and after the Merger, the merger or consolidation of one or more of the Subsidiaries of CVOP I with and into CVOP I (it being understood and agreed that in any such event that CVOP I will be the surviving Person), (iii) the merger or consolidation of two or more Subsidiaries of CVOP II or, from and after the BorrowerMerger CVOP I; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iiiiv) the liquidation or dissolution of any Subsidiary of CVOP II or, from and after the Borrower Merger, CVOP I that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower CVOP I, CVOP II and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets , and (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entityiv) subject to compliance with the terms of this Agreement (includingconfirmation by the Agent in writing that the Merger Effectiveness Conditions have been satisfied, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolvethe Merger.
Appears in 3 contracts
Samples: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.), Credit Agreement (Carter Validus Mission Critical REIT II, Inc.), Term Loan Agreement (Carter Validus Mission Critical REIT II, Inc.)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, not nor will it permit the Guarantors or any of their respective Subsidiaries toto dissolve, become a party to any dissolutionliquidate, liquidationdispose of (including, disposition without limitation, by way of an LLC Division) all or substantially all of its assets or business, mergermerge, reorganizationreorganize, consolidation consolidate or enter into any other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Agent and the Majority Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower Borrower, as applicable, will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary Guarantor, an Unencumbered Property Subsidiary or a Subsidiary that is a Guarantor in either case directly or indirectly owns an Unencumbered Pool Asset unless such Guarantor Subsidiary Guarantor, Unencumbered Property Subsidiary or other Subsidiary that in either case directly or indirectly owns an Unencumbered Pool Asset, as applicable, will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own own, directly or indirectly, any assets Unencumbered Pool Assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 5.3), (iv) the merger or consolidation of a Subsidiary Guarantor into (A) REIT or Borrower, provided that REIT or Borrower, as applicable, shall be the continuing or surviving Person, (B) another Subsidiary Guarantor, or (C) any other Person, directly or indirectly or as contemplated in §8.3(o), subject to compliance with the terms of this Agreement and provided that, if it owns an Unencumbered Pool Asset and is not the surviving entity, then Borrower has complied with §5.67.20(e) to remove such Unencumbered Pool Asset from being included in the calculation of the Unencumbered Pool Aggregate Asset Value; and (v) the merger or consolidation, directly or indirectly or as contemplated in §8.3(o), of REIT or Borrower with any other Person so long as (X) REIT or Borrower, as applicable, shall be the continuing and surviving Person; (Y) Borrower shall have given the Agent and the Lenders at least 30 days’ prior written notice of such consolidation or merger; and (Z) Borrower shall have delivered to the Agent for distribution to each of the Lenders a Compliance Certificate, calculated on a pro forma basis based on information then available to the Borrower, evidencing the continued compliance by the Borrower and Guarantors with the terms and conditions of this Agreement and the other Loan Documents, including, without limitation, the financial covenants contained in §9, after giving effect to such consolidation or merger, together with any documentation and information reasonably requested by the Lenders in connection with “know your customer” laws or policies. Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 5.3 and 8.8), and after any such permitted sale, may dissolve.
Appears in 3 contracts
Samples: Credit Agreement (Global Net Lease, Inc.), Credit Agreement (Global Net Lease, Inc.), Credit Agreement (Global Net Lease, Inc.)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the The Borrower will not, nor and will it not permit the Guarantors or cause any of their respective its Subsidiaries to, become a party to liquidate, wind up or dissolve, or enter into any dissolutionconsolidation, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation merger or other business combination combination, or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as do any of the foregoing; provided, however, that:
(i) any Subsidiary of the Borrower may merge or consolidate with, or be liquidated into, (y) the Borrower (so long as the Borrower is the surviving or continuing entity) or (z) any other Subsidiary of the Borrower, (subject to the limitations on outstanding Investments in non-Wholly Owned Subsidiaries and so long as, if either constituent entity is a Subsidiary Guarantor, the surviving or continuing entity is a Subsidiary Guarantor), in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoingcase, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), would result therefrom;
(ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets may merge or consolidate with another Person (other than another Credit Party and subject to the limitations on outstanding Investments in non-Wholly Owned Subsidiaries), so long as such Subsidiary is not a Guarantor (or x) if such Subsidiary is a Subsidiary Guarantor, the surviving entity is a Subsidiary Guarantor, (y) such merger or consolidation constitutes a Permitted Acquisition and the applicable conditions and requirements of Sections 6.9 and 6.10 are satisfied, and (z) no Default or Event of Default has occurred and is continuing or would result therefrom;
(iii) the Borrower may merge or consolidate with another Person (other than another Credit Party), so long as (x) the Borrower is the surviving entity, (y) such merger or consolidation constitutes a Permitted Acquisition and such the applicable conditions and requirements of Sections 6.9 and 6.10 are satisfied, and (z) no Default or Event of Default has occurred and is continuing or would result therefrom; and
(iv) to the extent not otherwise permitted under the foregoing clauses, (i) any Subsidiary comply with the provisions that has sold, transferred or otherwise disposed of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed all or substantially all of its assets in accordance connection with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of an Asset Disposition permitted under this Agreement and no longer conducts any active trade or business may be liquidated, wound up and dissolved, (includingii) any Subsidiary that is not a Material Subsidiary may be liquidated, without limitationwound up and dissolved at any time, §§5.4 in each case so long as no Default or Event of Default has occurred and 8.8), and after any such permitted sale, may dissolveis continuing or would result therefrom.
Appears in 3 contracts
Samples: Credit Agreement and Pledge and Security Agreement (Swisher Hygiene Inc.), Credit Agreement (Swisher Hygiene Inc.), Credit Agreement (Swisher Hygiene Inc.)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower (a) Borrower-SPE will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, not become a party to any dissolution, liquidation, liquidation or disposition of all or substantially all of its Borrower-SPE’s assets or business, a merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: except for (i) the merger or consolidation of one or more Borrower-SPE with another Subsidiary of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with EPR, and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of Borrower-SPE where Borrower-SPE is the Borrower; sole surviving entity provided however that no any such merger or consolidation shall involve does not violate Borrower-SPE’s status as a Special Purpose Entity.
(b) EPR will not become a party to any dissolution, liquidation or disposition of all or substantially all of EPR’s assets or business, a merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of Required Lenders, except for (i) the merger or consolidation of EPR with one of its Subsidiaries, provided that such Subsidiary is other than Borrower-SPE; (ii) the merger or consolidation of EPR where EPR is the sole surviving entity provided however that is any such merger or consolidation does not violate EPR’s status as a Guarantor unless such Guarantor will be the surviving Person, and REIT; (iii) any acquisitions or investments; or (iv) any merger where EPR is the liquidation or dissolution of any Subsidiary surviving entity such that a majority of the Borrower that does not own any assets so long seats of the Board of Directors of the newly constituted entity are held by trustees of EPR serving as such Subsidiary is prior to the time of such merger, or EPR otherwise maintains a controlling interest therein, provided further that such exceptions do not a Guarantor (otherwise create any Default or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions Event of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolveDefault hereunder.
Appears in 3 contracts
Samples: Master Credit Agreement (Entertainment Properties Trust), Master Credit Agreement (Entertainment Properties Trust), Master Credit Agreement (Entertainment Properties Trust)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower The Loan Parties will not, nor and will it not permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination combination, or agree to or effect any asset acquisition, acquisition or stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case foregoing without the prior written consent of the Required Lenders. Notwithstanding , except that:
(a) any Subsidiary of the foregoing, so long as no Default Borrower may be merged or Event of Default has occurred and is continuing immediately before and after giving effect thereto, consolidated with or into the following Borrower (provided that the Borrower shall be permitted without the consent of the Agent continuing or surviving corporation) or with or into any Lender: Subsidiary that is a Guarantor (provided that (i) such Guarantor shall be the merger continuing or consolidation of one surviving corporation or more of (ii) simultaneously with such transaction, the Subsidiaries continuing or surviving corporation shall become a Guarantor and the Borrower shall comply with §7.21 in connection therewith);
(b) any Subsidiary of the Borrower may dispose of any or all of its assets (other than upon voluntary liquidation or otherwise) to Borrower or any Subsidiary that is a Guarantor;
(c) an Excluded Subsidiary pursuant to clause (i) of the definition thereof (i) may be merged or consolidated with or into Borrower or any other Subsidiary of Borrower and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution may dispose of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and upon voluntary liquidation or otherwise) pro rata to its equity holders; and
(d) Borrower or any Subsidiary may effectuate such sale consummate any Investment otherwise permitted by §8.3(r) by merger or consolidation, provided that if (i) such merger or consolidation with another Personinvolves the Borrower, with the Borrower is the continuing or surviving corporation and (ii) if such other Person being merger or consolidation involves a Guarantor, such Guarantor is the continuing or surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolvecorporation.
Appears in 2 contracts
Samples: Revolving and Term Credit Agreement (Forestar Group Inc.), Revolving and Term Credit Agreement (Forestar Real Estate Group Inc.)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolutiondissolve, liquidationliquidate, disposition dispose of all or substantially all of its assets or business, mergermerge, reorganizationreorganize, consolidation consolidate or do any other business combination or agree to effect any asset acquisitioncombination, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 5.4), and (iv) the merger or consolidation, directly or indirectly, of Borrower with any other Person so long as (A) Borrower shall be the continuing and surviving Person; (B) Borrower shall have given the Agent and the Lenders at least thirty (30) days’ prior written notice of such consolidation or merger; (C) Borrower shall have delivered to the Agent for distribution to each of the Lenders a Compliance Certificate, calculated on a pro forma basis based on information then available to Borrower, evidencing the continued compliance by the Borrower, the REIT and Guarantors with the terms and conditions of this Agreement and the other Loan Documents, including, without limitation, the financial covenants contained in §5.69, after giving effect to such consolidation or merger, together with any documentation and information reasonably requested by the Lenders in connection with “know your customer” laws or policies; (D) such consolidation or merger is not the result of a hostile takeover; (E) there is no Default or Event of Default at the time of such consolidation or merger and the consummation of such consolidation or merger does not result in a Default or Event of Default (including without limitation, any Change of Control); and (F) each of the representations and warranties made by or on behalf of the Borrower, the REIT, the Guarantors or any of their respective Subsidiaries contained in this Agreement, the other Loan Documents or in any document or instrument delivered pursuant to or in connection with this Agreement shall be true in all material respects immediately after giving effect to such merger or consolidation (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct only as of such specified date, and that any representation or warranty that is qualified by any materiality standard shall be required to be true and correct in all respects). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolve.
Appears in 2 contracts
Samples: Credit Agreement (Four Springs Capital Trust), Credit Agreement (Four Springs Capital Trust)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the The Borrower will not, nor and will it not permit the Guarantors or cause any of their respective its Subsidiaries to, become liquidate, wind up or dissolve, or enter into any consolidation, merger or other combination, or agree to do any of the foregoing; provided, however, that:
(i) any Wholly Owned Subsidiary of the Borrower may merge or consolidate with any Subsidiary Guarantor (provided that a party Subsidiary Guarantor is the surviving entity), or may be liquidated into a Subsidiary Guarantor, in each case provided further that no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(ii) any Wholly Owned Subsidiary of the Borrower that is a Domestic Subsidiary may merge or consolidate with another Person other than the Borrower, provided that (x) the surviving entity is a Domestic Subsidiary and a Subsidiary Guarantor, (y) unless such other Person is a Wholly Owned Subsidiary immediately prior to giving effect thereto, such merger or consolidation shall constitute a Permitted Acquisition and the applicable conditions and requirements of Sections 6.8 and 6.9 shall be satisfied, and (z) no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(iii) any dissolutionWholly Owned Subsidiary of the Borrower that is a Foreign Subsidiary may merge or consolidate with any other Wholly Owned Subsidiary of the Borrower that is a Foreign Subsidiary, liquidationprovided that if either constituent corporation is a Subsidiary Guarantor, disposition the surviving entity shall be a Subsidiary Guarantor, and provided further that no Default or Event of Default shall have occurred and be continuing or would result therefrom; and
(iv) to the extent not otherwise expressly permitted under the foregoing clauses, any Wholly Owned Subsidiary that has sold, transferred or otherwise disposed of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be connection with an Asset Disposition permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of under this Agreement (includingand no longer conducts any active trade or business may be liquidated, without limitation, §§5.4 wound up and 8.8), and after any such permitted sale, may dissolvedissolved.
Appears in 2 contracts
Samples: Credit Agreement (Symmetry Medical Inc.), Credit Agreement (Symmetry Medical Inc.)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, nor will it Borrower permit the Guarantors REIT or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of all or substantially all of its assets liquidation or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: except for (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of Borrower, (iii) any dissolution of a Subsidiary that owns no assets, (iv) dispositions permitted by §8.8, and (v) a merger of a Person with (x) Borrower (so long as Borrower is the surviving entity) or (y) a Subsidiary of the Borrower, so long as (A) in the case of a merger with a Subsidiary of Borrower organized under the laws of a political subdivision of the United States, such Person was organized under the laws of the United States of America or one of its states; (B) if such Subsidiary is a Subsidiary Guarantor, an Unencumbered Property Subsidiary or a Subsidiary that in either case directly or indirectly owns an Unencumbered Property, such Subsidiary is the survivor of such merger, and if such Subsidiary is not a Subsidiary Guarantor, an Unencumbered Property Subsidiary or a Subsidiary that in either case directly or indirectly owns an Unencumbered Property, the surviving Person is controlled by the Borrower; (C) the Borrower shall have given the Agent at least ten (10) Business Days’ prior written notice of such merger; (D) such merger is completed as a result of negotiations with the approval of the board of directors or similar body of such Person and is not a so called “hostile takeover”; and (E) following such merger, the Borrower and its Subsidiaries will continue to be engaged solely in the businesses permitted by §7.14; provided that no such merger or consolidation shall involve any Subsidiary be permitted in the event that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation Default or dissolution Event of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (Default exists immediately before or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement would exist after giving effect thereto (including, without limitation, pro forma compliance with the covenants set forth in §8.1, §8.3, §8.7, and §§5.4 and 8.89.1 through 9.5), and after any such permitted sale, may dissolve.
Appears in 2 contracts
Samples: Credit Agreement (DuPont Fabros Technology LP), Credit Agreement (Dupont Fabros Technology, Inc.)
Merger, Consolidation. Other The Company will not, and will not permit or cause any of its Subsidiaries to, liquidate, wind up or dissolve, or enter into any consolidation, merger or other combination; provided, however, that:
(i) the Company may merge or consolidate with another Person so long as the Company is the surviving entity, (y) unless such other Person is a Subsidiary immediately prior to giving effect thereto, such merger or consolidation shall constitute a Permitted Acquisition and the applicable conditions and requirements of paragraphs 5H and 5I shall be satisfied, and (z) immediately after giving effect thereto, no Default or Event of Default would exist;
(ii) any Subsidiary Guarantor may merge or consolidate with another Person so long as (x) the surviving entity is the Company or a Subsidiary Guarantor (other than with respect to or in connection with any the sale or other disposition of all of the Capital Stock of such Subsidiary in a transaction expressly permitted under §8.8or pursuant to this Agreement), (y) unless such other Person is a Subsidiary immediately prior to giving effect thereto (other than in connection with the Borrower will not, nor will it permit the Guarantors sale or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, other disposition of all of the Capital Stock of such Subsidiary in a transaction expressly permitted under or pursuant to this Agreement), such merger or consolidation shall constitute a Permitted Acquisition and the applicable conditions and requirements of paragraphs 5H and 5I shall be satisfied, and (z) immediately after giving effect thereto, no Default or Event of Default would exist;
(iii) any Excluded Subsidiary or Foreign Subsidiary may merge or consolidate with another Person so long as (x) the surviving entity is the Company or a Subsidiary (other than in connection with the sale or other disposition of all of the Capital Stock of such Subsidiary in a transaction expressly permitted under or pursuant to this Agreement), (y) unless such other Person is a Subsidiary immediately prior to giving effect thereto (other than in connection with the sale or other disposition of all of the Capital Stock of such Subsidiary in a transaction expressly permitted under or pursuant to this Agreement), such merger or consolidation shall constitute a Permitted Acquisition and the applicable conditions and requirements of paragraphs 5H and 5I shall be satisfied, and (z) immediately after giving effect thereto, no Default or Event of Default would exist;
(iv) any Subsidiary Guarantor may liquidate, wind up or dissolve so long as (x) such Subsidiary transfers all or substantially all of its net assets to the Company or businessa Subsidiary Guarantor prior to such liquidation, mergerwinding up or dissolution and (y) immediately after giving effect thereto, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred would exist; and
(v) any Excluded Subsidiary or Foreign Subsidiary may liquidate, wind up or dissolve so long as (x) such Subsidiary transfers all or substantially all of its net assets to the Company or a Subsidiary prior to such liquidation, winding up or dissolution and is continuing (y) immediately before and after giving effect thereto, the following shall be permitted without the consent no Default or Event of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolveDefault would exist.
Appears in 2 contracts
Samples: Note Purchase and Private Shelf Agreement (Old Dominion Freight Line, Inc.), Note Purchase and Private Shelf Agreement (Old Dominion Freight Line, Inc.)
Merger, Consolidation. Other than with respect Subject to or in connection with any disposition permitted under §8.8the limitations of Section 7.1(i) of the Credit and Security Agreement, the Borrower will notno Transferor will, nor will it permit the Guarantors or any of their respective its Restricted Subsidiaries to, become merge into, amalgamate with or consolidate with any other Person, or permit any other Person to merge into, amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a party to any dissolution, liquidation, disposition series of transactions) all or substantially all of its assets assets, or business, merger, reorganization, consolidation all or other business combination or agree to effect any asset acquisition, substantially all of the stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, its Restricted Subsidiaries (in each case without case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred time thereof and is continuing immediately before and after giving effect thereto, the following thereto no Termination Event shall have occurred and be permitted without the consent of the Agent or any Lender: continuing:
(i) the merger or consolidation of one or more of the Subsidiaries of the Borrower any Subsidiary (other than any Subsidiary that the Buyer) may merge or amalgamate with Smithfield in a transaction in which Smithfield is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), entity pursuant to documentation reasonably satisfactory to the Administrative Agent;
(ii) the merger any Transferor (other than Smithfield) and any other Person may merge into or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve amalgamate with any Subsidiary that Transferor in a transaction in which a Transferor is a Guarantor unless such Guarantor will be the surviving Personcorporation, and or, concurrently with the consummation of such transaction, the surviving entity becomes a Transferor;
(iii) any entity (other than Smithfield or the Buyer) may merge into or amalgamate with any other entity (other than Smithfield or the Buyer);
(iv) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of its assets to Smithfield or another Restricted Subsidiary;
(v) any Restricted Subsidiary may liquidate or dissolve if Smithfield determines in good faith that such liquidation or dissolution is in the best interests of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary Smithfield and is not a Guarantor materially disadvantageous to the Lenders; and
(vi) any Transferor or if such any Restricted Subsidiary is a Guarantormay sell, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all transfer, lease or otherwise dispose of its assets (and may effectuate including for the avoidance of doubt any Excluded Receivable) in any manner expressly permitted by any Transaction Document or if permitted under Section 6.04 or 6.05 of the Parent Credit Agreement; provided, that any such sale by merger or consolidation with another Person, with amalgamation that would otherwise be permitted by this Section 4.2(g) involving a Person that is not a wholly-owned Restricted Subsidiary immediately prior to such other Person being merger shall not be permitted unless also permitted by Section 6.04 of the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolveParent Credit Agreement.
Appears in 2 contracts
Samples: Receivables Sale Agreement (Smithfield Foods Inc), Receivables Sale Agreement (Smithfield Foods Inc)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will 7.17.1 The Borrowers shall not, nor will it and shall not suffer or permit the Guarantors or any of their respective Subsidiaries to, :
(a) become a party to any dissolutionmerger or consolidation, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to or effect any asset acquisition, acquisition or disposition or stock acquisition or disposition (other than the acquisition individually or disposition of assets in a series the ordinary course of transactions which may have a similar effect as any business consistent with past practices, including the origination or disposition of the foregoing, in each case without the prior written consent Mortgage Loans and property acquired on foreclosure of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: Mortgages) except (i) the merger or consolidation of one or more of the their Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into one of the Borrower Borrowers, and (it being understood ii) dispositions permitted under Section 7.17.1(b) hereof; and
(b) sell, assign, lease, convey, transfer or otherwise dispose of (whether in one transaction or a series of transactions) all or any substantial part of such Person’s business or assets, whether now owned or acquired after the date hereof, other than, in the ordinary course of business consistent with past practices including, without limitation, and agreed that in any such event to the Borrower will be extent not otherwise prohibited by this Agreement, to a Subsidiary of the surviving Person)Borrowers, and sales of (i) Mortgage Loans, (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving PersonMortgage-backed Securities, and (iii) the liquidation or dissolution of any Subsidiary Servicing Contracts in an amount not to exceed five percent (5%) of the Servicing Portfolio during any twelve (12) month period.
7.17.2 Each Borrower that does shall not, and shall not own suffer or permit any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets Subsidiaries to, make any material change in accordance with the nature or scope of the business in which each such Person engages as of the date of this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8)with respect to the Borrowers, ceasing to actively engage in the business of originating Mortgage Loans.
7.17.3 Each Borrower shall not, and after shall not suffer or permit any of its Subsidiaries to, issue any additional ownership interests, or rights or instruments convertible into such permitted saleownership interests.
7.17.4 Each Borrower shall not, may dissolveand shall not suffer or permit any of its Subsidiaries to, change its or their respective jurisdictions of organization, legal names, taxpayer identification numbers and state organizational numbers unless such Person shall have provided the Agent with not less than forty-five (45) days prior written notice.
Appears in 2 contracts
Samples: Warehousing Credit and Security Agreement (Centerline Holding Co), Warehousing Credit and Security Agreement (Centerline Holding Co)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, The Borrower and the Borrower Guarantors will not, nor and will it not permit the Guarantors or any of their respective Subsidiaries to, become a party to effect any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: Lenders except for (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor (unless such the Guarantor will be is the surviving Personentity), (iii) asset sales consummated in accordance with §5.3 or §8.8, (iv) the merger or consolidation of a Subsidiary of the REIT (other than the Borrower) with and into the REIT, and (iiiv) the liquidation merger or dissolution consolidation, directly or indirectly, of Borrower or REIT with any Subsidiary of the Borrower that does not own any assets other Person so long as (A) REIT or Borrower, as applicable, shall be the continuing and surviving Person; (B) Borrower shall have given the Agent and the Lenders at least thirty (30) days’ prior written notice of such Subsidiary is not consolidation or merger; (C) Borrower shall have delivered to the Agent for distribution to each of the Lenders a Guarantor (or if such Subsidiary is Compliance Certificate, calculated on a Guarantorpro forma basis based on information then available to Borrower, so long as evidencing the continued compliance by the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance Guarantors with the terms and conditions of this Agreement (and the other Loan Documents, including, without limitation, the financial covenants contained in §§5.4 9, after giving effect to such consolidation or merger, together with any documentation and 8.8)information reasonably requested by the Lenders in connection with “know your customer” laws or policies; (D) such consolidation or merger is not the result of a hostile takeover; (E) there is no Default or Event of Default at the time of such consolidation or merger and the consummation of such consolidation or merger does not result in a Default or Event of Default; and (F) each of the representations and warranties made by or on behalf of the Borrower, the Guarantors or any of their respective Subsidiaries contained in this Agreement, the other Loan Documents or in any document or instrument delivered pursuant to or in connection with this Agreement shall be true in all material respects immediately after giving effect to such merger or consolidation (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct only as of such specified date, and after that any such permitted sale, may dissolverepresentation or warranty that is qualified by any materiality standard shall be required to be true and correct in all respects).
Appears in 2 contracts
Samples: Term Loan Agreement (Mid-America Apartments, L.P.), Term Loan Agreement (Mid-America Apartments, L.P.)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, The Borrower and the Borrower Guarantors will not, nor and will it not permit the Guarantors or any of their respective Subsidiaries to, become a party to effect any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: Lenders except for (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor (unless such the Guarantor will be is the surviving Personentity), (iii) asset sales consummated in accordance with §5.3 or §8.8, (iv) the merger or consolidation of a Subsidiary of the REIT (other than the Borrower) with and into the REIT, (v) the Merger Transaction, if consummated in all material respects as described on Schedule 1.4, and (iiivi) the liquidation or dissolution of any Subsidiary of Person may merge into the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as as: (w) the Borrower or such Guarantor is the surviving entity, (x) no Change of Control results therefrom, (y) no Default or Event of Default then exists or would result therefrom, and (z) the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing Guarantors shall be in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to pro forma compliance with the terms of this Agreement (including, without limitation, financial covenants under §§5.4 and 8.8)9 immediately after giving effect to such merger, and after any the Borrower shall have delivered an officer’s certificate to the Agent by which it certifies to the satisfaction of such permitted sale, may dissolveconditions.
Appears in 1 contract
Samples: Term Loan Agreement (Mid America Apartment Communities Inc)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolutiondissolve, liquidationliquidate, disposition dispose of all or substantially all of its assets or business, mergermerge, reorganizationreorganize, consolidation consolidate or do any other business combination or agree to effect any asset acquisitioncombination, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, and (iv) the merger or consolidation, directly or indirectly, of Borrower with any other Person so long as (A) Borrower shall be the continuing and surviving Person; (B) Borrower shall have given the Agent and the Lenders at least thirty (30) days’ prior written notice of such Subsidiary comply consolidation or merger; (C) Borrower shall have delivered to the Agent for distribution to each of the Lenders a Compliance Certificate, calculated on a pro forma basis based on information then available to Borrower, evidencing the continued compliance by the Borrower, the REIT and Guarantors with the provisions terms and conditions of this Agreement and the other Loan Documents, including, without limitation, the financial covenants contained in §5.5 9, after giving effect to such consolidation or merger, together with any documentation and §5.6information reasonably requested by the Lenders in connection with “know your customer” laws or policies; (D) such consolidation or merger is not the result of a hostile takeover; (E) there is no Default or Event of Default at the time of such consolidation or merger and the consummation of such consolidation or merger does not result in a Default or Event of Default (including without limitation, any Change of Control); and (F) each of the representations and warranties made by or on behalf of the Borrower, the REIT, the Guarantors or any of their respective Subsidiaries contained in this Agreement, the other Loan Documents or in any document or instrument delivered pursuant to or in connection with this Agreement shall be true in all material respects immediately after giving effect to such merger or consolidation (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct only as of such specified date, and that any representation or warranty that is qualified by any materiality standard shall be required to be true and correct in all respects). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolve.
Appears in 1 contract
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the (a) The Borrower will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, not become a party to any dissolution, liquidation, liquidation or disposition of all or substantially all of its Borrower's assets or business, a merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: except for (i) the merger or consolidation of one Borrower with another Subsidiary of EPR or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with , and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of Borrower where the Borrower; Borrower is the sole surviving entity provided however that no any such merger or consolidation shall involve does not violate Borrower's status as a Special Purpose Entity.
(b) EPR will not become a party to any dissolution, liquidation or disposition of all or substantially all of EPR's assets or business, a merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of Required Lenders, except for (i) the merger or consolidation of EPR with one of its Subsidiaries, provided that such Subsidiary is other than the Borrower (ii) the merger or consolidation of EPR where EPR is the sole surviving entity provided however that is any such merger or consolidation does not violate EPR's status as a Guarantor unless such Guarantor will be the surviving PersonREIT, and (iii) any acquisitions or investments; or (iv) any merger where EPR is the liquidation or dissolution of any Subsidiary surviving entity such that a majority of the Borrower that does not own any assets so long seats of the Board of Directors of the newly constituted entity are held by directors of EPR serving as such Subsidiary is prior to the time of such merger, or EPR otherwise maintains a controlling interest therein, PROVIDED FURTHER that such exceptions do not a Guarantor (otherwise create any Default or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions Event of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolveDefault hereunder.
Appears in 1 contract
Samples: Master Credit Agreement (Entertainment Properties Trust)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Majority Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 5.7), or (iv) the acquisition of all or substantially all of the assets of another Person in a bona fide arm’s length transaction that otherwise satisfies the requirements of §7.14 and §5.68.3 and which does not create or result in a Default or Event of Default (provided that if any such merger or consolidation affects any Company or owner of a Mortgaged Property, then prior to any such merger or consolidation Borrower shall give prior written notice of such event to Agent and shall cause to be executed and delivered to Agent such additional amendments, documents, opinions, title endorsements or title policies and such other matters as Agent may reasonably require in order to continue Agent’s first priority perfected lien and security interest in the Collateral). Nothing in this §8.4 shall prohibit The Lenders consent to the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolve.Behringer Harvard Cayman Ltd.
Appears in 1 contract
Samples: Credit Agreement (Tier Reit Inc)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, not nor will it permit the Guarantors or any of their respective Subsidiaries toto dissolve, become a party to any dissolutionliquidate, liquidation, disposition dispose of all or substantially all of its assets or business, mergermerge, reorganizationreorganize, consolidation consolidate or enter into any other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Agent and the Majority Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower Borrower, as applicable, will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 5.3), (iv) the merger or consolidation of a Subsidiary Guarantor into (A) REIT or Borrower, provided that REIT or Borrower, as applicable, shall be the continuing or surviving Person, (B) another Subsidiary Guarantor, or (C) any other Person, directly or indirectly or as contemplated in §8.3(o), subject to compliance with the terms of this Agreement and provided that, if it owns an Unencumbered Pool Asset and is not the surviving entity, then Borrower has complied with §5.67.20(e) to remove such Unencumbered Pool Asset from being included in the calculation of the Unencumbered Pool Availability; and (v) the merger or consolidation, directly or indirectly or as contemplated in §8.3(o), of REIT or Borrower with any other Person so long as (A) REIT or Borrower, as applicable, shall be the continuing and surviving Person; (B) Borrower shall have given the Agent and the Lenders at least 30 days’ prior written notice of such consolidation or merger; and (C) Borrower shall have delivered to the Agent for distribution to each of the Lenders a Compliance Certificate, calculated on a pro forma basis based on information then available to the Borrower, evidencing the continued compliance by the Borrower and Guarantors with the terms and conditions of this Agreement and the other Loan Documents, including, without limitation, the financial covenants contained in §9, after giving effect to such consolidation or merger, together with any documentation and information reasonably requested by the Lenders in connection with “know your customer” laws or policies. Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 5.3 and 8.8), and after any such permitted sale, may dissolve.
Appears in 1 contract
Samples: Senior Unsecured Credit Agreement (American Realty Capital Healthcare Trust Inc)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, nor will it Borrower permit the Guarantors REIT or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: except for (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of Borrower, (iii) any dissolution of a Subsidiary that owns no assets, (iv) dispositions permitted by §8.8, and (v) a merger of a Person with a Subsidiary of the Borrower (other than a Subsidiary which is a Subsidiary Guarantor that directly or indirectly owns an Unencumbered Asset), so long as (A) in the case of a merger with a Subsidiary of Borrower organized under the laws of a political subdivision of the United States, such Person was organized under the laws of the United States of America or one of its states; (B) if such Subsidiary is a Subsidiary Guarantor, such Subsidiary is the survivor of such merger, and if such Subsidiary is not a Subsidiary Guarantor, the surviving Person is controlled by the Borrower; (C) the Borrower shall have given the Agent at least ten (10) Business Days’ prior written notice of such merger; (D) such merger is completed as a result of negotiations with the approval of the board of directors or similar body of such Person and is not a so called “hostile takeover”; (E) following such merger, the Borrower and its Subsidiaries will continue to be engaged solely in the businesses permitted by §7.14; and (F) such merger, together with all other mergers permitted by this §8.4(v) and consummated in the same fiscal year as such merger, shall not increase the Gross Asset Value by more than fifty percent (50%) of the Gross Asset Value as of the end of the previous fiscal year; provided that no such merger or consolidation shall involve any Subsidiary be permitted in the event that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation Default or dissolution Event of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (Default exists immediately before or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and would exist after any such permitted sale, may dissolvegiving effect thereto.
Appears in 1 contract
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolutiondissolve, liquidationliquidate, disposition dispose of all or substantially all of its assets or business, mergermerge, reorganizationreorganize, consolidation consolidate or do any other business combination or agree to effect any asset acquisitioncombination, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: :
(ia) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a an Applicable Subsidiary Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), ;
(iib) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and ;
(iiic) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 5.4 and §5.65.5, if applicable). Nothing in this §8.4 shall prohibit the dissolution of ; and
(d) a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 5.5 and 8.8); and
(e) the merger or consolidation or other business combination of any Person with the Borrower including, simultaneously with such merger, the merger or consolidation or other business combination of (i) the general partner of such Person with General Partner so long as General Partner is the surviving entity, or (ii) an entity that has elected to obtain and qualifies for REIT Status and which is the general partner or other owner of such Person with the REIT, so long as the REIT is the surviving entity; and so long as in each instance
(i) such Person was organized under the laws of the United States of America or one of its states;
(ii) if such merger, consolidation or other business combination involves the Borrower, the Borrower is the survivor of such merger, consolidation or other business combination;
(iii) immediately prior to such merger, consolidation or other business combination, and immediately thereafter and after any giving effect thereto, no Default or Event of Default is or would be in existence;
(iv) the Borrower shall have given the Agent and the Lenders at least ten (10) Business Days’ prior written notice of such merger, consolidation or other business combination;
(v) such merger, consolidation or other business combination is completed as a result of negotiations with the approval of the board of directors of the REIT and similar body of the other party to such merger, consolidation or other business combination and is not a so called “hostile takeover”;
(vi) following such merger, consolidation or other business combination, the Borrower and its Subsidiaries will continue to be in compliance with §7.14; and
(vii) such merger, consolidation or other business combination, together with all other mergers, consolidations or other business combinations permitted saleby this §8.4 and consummated in the same fiscal year as such merger, may dissolveconsolidation or other business combination, shall not increase the Gross Asset Value by more than fifty percent (50%) of the Gross Asset Value as of the end of the previous fiscal year.
Appears in 1 contract
Samples: Credit Agreement (Monogram Residential Trust, Inc.)
Merger, Consolidation. Other than with respect to or in connection with any disposition expressly permitted under §Section 8.8, the Borrower Borrowers will not, nor will it permit the Guarantors or any of their respective Subsidiaries or any Guarantors to, become a party to any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisitioncombination, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect theretothereto and no Change of Control would occur, the following shall be permitted without the consent of the Administrative Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) Borrowers with and into the a Borrower (it being understood and agreed that that, in any such event the Borrower event, if Parent is a party to such transaction, Parent will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the BorrowerBorrowers; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor Borrower unless such Guarantor a Borrower will be the surviving Person, and (iii) the merger, liquidation or dissolution of any Subsidiary of the a Borrower that does not own any assets so long as any assets previously owned by such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has were disposed of its assets in accordance with this Agreement. A , (iv) the merger of a Borrower that is the owner or lessee of a Collateral Property with and into a Subsidiary of Trilogy Investors in order to effect a release of a Collateral Property pursuant to Section 5.3, (v) the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation of one or more Guarantors with another Personand into a Guarantor (it being understood and agreed that, with in any such other Person being event, if Trilogy Investors is a party to such transaction, Trilogy Investors will be the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8Person), (vi) the merger or consolidation of two or more Subsidiaries of a Guarantor that are not a Guarantor, a Borrower or a Subsidiary of a Borrower, (vii) the merger, liquidation or dissolution of any Subsidiary of a Guarantor that is not also a Guarantor, a Borrower or a Subsidiary of Borrower that does not own any assets so long as any assets previously owned by such Subsidiary were disposed of in accordance with this Agreement, and after (viii) any merger, consolidation or other business combination to effect an Investment permitted under Section 8.3 (it being understood and agreed that in any such permitted saleevent (A) if a Borrower is a party to such a transaction, may dissolvea Borrower will be the surviving Person and (B) if Parent is a party to such transaction, Parent will be the surviving Person).
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Griffin-American Healthcare REIT III, Inc.)
Merger, Consolidation. Other than with respect Any Person (a) into which the Performance Guarantor may be merged or consolidated, (b) resulting from any amalgamation, merger or consolidation to which the Performance Guarantor shall be a party, (c) which acquires by conveyance, transfer, or in connection with any disposition permitted under §8.8, the Borrower will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of all or lease substantially all of its the assets of the Performance Guarantor, or business(d) succeeding to the business of the Performance Guarantor, in any of the foregoing cases shall execute an agreement of assumption to perform every obligation of the Performance Guarantor under this Performance Guarantee and, whether or not such assumption agreement is executed, shall be the successor to the Performance Guarantor under this Performance Guarantee without the execution or filing of any document or any further act on the part of any of the parties to this Performance Guarantee, anything in this Performance Guarantee to the contrary notwithstanding; provided, however, that nothing contained herein shall be deemed to release the Performance Guarantor from any obligation as Performance Guarantor hereunder. The Performance Guarantor shall provide prompt notice of any amalgamation, merger, reorganizationconsolidation, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of succession pursuant to this Section to the foregoing, in each case without Beneficiary and the prior written consent of the Required LendersPermitted Assignee. Notwithstanding the foregoing, so long the Performance Guarantor shall not amalgamate, merge or consolidate with any other Person or permit any other Person to become a successor to the Performance Guarantor's business, unless (a) immediately after giving effect to such transaction, no representation, warranty or covenant made pursuant to Section 7 shall have been breached (for purposes hereof, such representations and warranties shall speak as of the date of the consummation of such transaction) and no Default or Event of Default has shall have occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Personcontinuing, and (iiib) the liquidation Performance Guarantor shall have delivered to the Beneficiary and the Permitted Assignee an officer's certificate stating that such amalgamation, consolidation, merger or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower succession and such Subsidiary agreement of assumption comply with the provisions of §5.5 this Section and §5.6). Nothing that all conditions precedent, if any, provided for in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate Performance Guarantee relating to such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolvetransaction have been complied with.
Appears in 1 contract
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower No Transaction Party will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of all or substantially all of its assets or business, Division, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoingforegoing (including a Division), in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: Majority Lenders except for (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a GuarantorPool Property Owner) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve Borrower (other than any Subsidiary that is a Guarantor unless such Guarantor will be the surviving PersonPool Property Owner), and or (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply in connection with the provisions release of §5.5 and §5.6)all Pool Properties owned by such Pool Property Owner. Nothing Notwithstanding anything to the contrary in this §8.4 or in §8.8, the Borrower shall prohibit not, and shall not permit any other Credit Party or any of their Subsidiaries to, consummate (i) any sale, merger, transfer, or any similar transaction with respect to any Real Estate or Equity Interests in any Person if the dissolution value or consideration of a Subsidiary which has disposed such transaction, together with the value or consideration of its assets all other similar transactions consummated in accordance with this Agreement. A Subsidiary the immediately preceding twelve months, would exceed fifteen percent (15%) of the Total Asset Value on such date, unless the Borrower may sell all shall have delivered to the Agent, at least five (5) Business Days prior to the expected consummation date for such transaction, written notice of its assets such transaction (with reasonable detail) together with a Compliance Certificate evidencing that no Default or Event of Default would exist after giving effect to such transaction or result therefrom, or (ii) any proposed merger that would resulting in an increase of 25% or more in Total Asset Value or that involves the Borrower or REIT Guarantor and may effectuate such sale by merger Borrower or consolidation with another Person, with such other Person being REIT Guarantor will not be the surviving entityPerson of such merger, unless the Borrower shall have delivered to the Agent, at least five (5) subject Business Days prior to compliance the expected consummation date for such merger, written notice of such transaction (with the terms of this Agreement (including, without limitation, §§5.4 and 8.8reasonable detail), and after any the Majority Lenders shall have consent to such permitted sale, may dissolvemerger in writing prior to the consummation thereof.
Appears in 1 contract
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the The Borrower and Guarantors will not, nor and will it not permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of (including, without limitation, by way of an LLC Division) all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: except for (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower, (iii) any dissolution of a Subsidiary of the Borrower that owns no assets, (iv) dispositions permitted by §8.8, (v) a merger of a Person with the Borrower or a Subsidiary of the Borrower, so long as (A) in the case of a merger with the Borrower or a Subsidiary of the Borrower organized under the laws of a political subdivision of the United States, such Person was organized under the laws of the United States of America or one of its states; (B)
(1) in case of a merger with the Borrower, the surviving person shall be the Borrower, (2) in the case of a merger with a Subsidiary Guarantor, the surviving person shall be a Subsidiary Guarantor or, with the prior written approval of the Administrative Agent, becomes a Subsidiary Guarantor, and (3) in the case of a merger with a Subsidiary that is not a Subsidiary Guarantor, the surviving person shall be controlled by the Borrower; (C) the Borrower shall have given the Agent at least ten (10) Business Days’ prior written notice of such merger; (D) such merger is completed as a result of negotiations with the approval of the board of directors or similar body of such Person and is not a so called “hostile takeover”; and (E) following such merger, Parent Company and its Subsidiaries will continue to be engaged solely in the businesses permitted by §7.14, and (vi) Investments constituting asset or equity acquisitions permitted by §8.3 and which are not mergers, reorganizations, consolidations or business combinations; provided that no such merger merger, consolidation or consolidation acquisition shall involve any Subsidiary be permitted in the event that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation Default or dissolution Event of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (Default exists immediately before or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and would exist after any such permitted sale, may dissolvegiving effect thereto.
Appears in 1 contract
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required LendersAgent. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of one or more of the Subsidiaries of CVOP I with and into CVOP I (it being understood and agreed that in any such event that CVOP I will be the surviving Person), (iii) the merger or consolidation of two or more Subsidiaries of the BorrowerBorrower or CVOP I; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower or CVOP I that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower Borrower, CVOP I and such Subsidiary comply with the provisions of §5.5 and §5.65.7). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolve.
Appears in 1 contract
Samples: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the The Borrower will not, nor and will it not permit the Guarantors or any of their respective its Subsidiaries or the REIT to, become a party to effect any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoingcombination, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: Lenders except for (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor (unless such the Guarantor will be is the surviving Personentity), (iii) asset sales consummated in accordance with §8.5, and (iiiiv) the liquidation merger or dissolution consolidation, directly or indirectly, of Borrower or the REIT with any Subsidiary of the Borrower that does not own any assets other Person so long as (A) REIT or Borrower, as applicable shall be the continuing and surviving Person (provided that Borrower may not merge with the REIT); (B) Borrower shall have given the Agent and the Lenders at least thirty (30) days’ prior written notice of such Subsidiary is not consolidation or merger; (C) Borrower shall have delivered to the Agent for distribution to each of the Lenders a Guarantor (or if such Subsidiary is Compliance Certificate, calculated on a Guarantorpro forma basis based on information then available to Borrower, so long as evidencing the continued compliance by the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another PersonGuarantors, with such other Person being the surviving entity) subject to compliance if any, with the terms and conditions of this Agreement (and the other Loan Documents, including, without limitation, the financial covenants contained in §9, after giving effect to such consolidation or merger, together with any documentation and information reasonably requested by the Lenders in connection with “know your customer” laws or policies; (D) there is no Default or Event of Default at the time of such consolidation or merger and the consummation of such consolidation or merger does not result in a Default or Event of Default (including without limitation, pursuant to §5.4 7.18); and 8.8)(E) each of the representations and warranties made by the Borrower or any of its Subsidiaries contained in this Agreement, the other Loan Documents or otherwise in connection therewith as or after the date thereof shall be true in all material respects immediately after giving effect to such merger or consolidation (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct only as of such specified date, and after that any such permitted sale, may dissolverepresentation or warranty that is qualified by any materiality standard shall be required to be true and correct in all respects).
Appears in 1 contract
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, not nor will it permit the Guarantors or any of their respective Subsidiaries toto dissolve, become a party to any dissolutionliquidate, liquidation, disposition dispose of all or substantially all of its assets or business, mergermerge, reorganizationreorganize, consolidation consolidate or enter into any other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Agent and the Majority Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower Borrower, as applicable, will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 5.5), (iv) the merger or consolidation of a Subsidiary Guarantor into (A) REIT or Borrower, provided that REIT or Borrower, as applicable, shall be the continuing or surviving Person, (B) another Subsidiary Guarantor, or (C) any other Person, directly or indirectly or as contemplated in §8.3(o), subject to compliance with the terms of this Agreement and provided that, if it owns a Borrowing Base Asset and is not the surviving entity, then Borrower has complied with §5.65.4 to remove such Borrowing Base Asset from being included in the calculation of the Borrowing Base Availability; and (v) the merger or consolidation, directly or indirectly or as contemplated in §8.3(o), of REIT or Borrower with any other Person so long as (X) REIT or Borrower, as applicable, shall be the continuing and surviving Person; (Y) Borrower shall have given the Agent and the Lenders at least 30 days’ prior written notice of such consolidation or merger; and (Z) Borrower shall have delivered to the Agent for distribution to each of the Lenders a Compliance Certificate, calculated on a pro forma basis based on information then available to the Borrower, evidencing the continued compliance by the Borrower and Guarantors with the terms and conditions of this Agreement and the other Loan Documents, including, without limitation, the financial covenants contained in §9, after giving effect to such consolidation or merger, together with any documentation and information reasonably requested by the Lenders in connection with “know your customer” laws or policies. Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolve.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (American Realty Capital Healthcare Trust II, Inc.)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the 7.18.1 The Borrower will not, nor and will it not permit the Guarantors or any of their respective its Subsidiaries to, become a party to any dissolutionmerger or consolidation, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to or effect any asset acquisition, acquisition or disposition or stock acquisition or disposition (other than the acquisition individually or disposition of assets in a series the ordinary course of transactions which may have a similar effect as any business consistent with past practices, including the acquisition or disposition of the foregoing, in each case without the prior written consent Mortgage Loans and property acquired on foreclosure of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: Mortgages) except (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person)Borrower, (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) other dispositions of Service Contracts in an amount not to exceed five percent (5%) of the liquidation Servicing Portfolio during any twelve (12) month period.
7.18.2 The Borrower will not, and will not permit any of its Subsidiaries to cease actively to engage in the business of originating or dissolution acquiring Mortgage Loans or make any other material change in the nature or scope of the business in which each such Person engages as of the date of this Agreement.
7.18.3 The Borrower will not, and will not permit any of its Subsidiaries to sell, assign, lease, convey, transfer or otherwise dispose of (whether in one transaction or a series of transactions) all or any substantial part of such Person's business or assets, whether now owned or acquired after the Closing Date, other than, in the ordinary course of business consistent with past practices and to the extent not otherwise prohibited by this Agreement, to a Subsidiary of the Borrower, and sales of (1) Mortgage Loans, (2) Mortgage-backed Securities , (3) Servicing Contracts and (4) other dispositions of Serviced Loans in an amount not to exceed five percent (5%) of the Servicing Portfolio during any twelve (12) month period.
7.18.4 The Borrower that does will not, and will not own permit any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Subsidiaries to issue any additional ownership interests, or rights or instruments convertible into such ownership interests, except for (i) Permitted Transfers, and (ii) those transactions set forth on SCHEDULE 6.7.1.
7.18.5 The Borrower may sell all will not, and will not permit any of its assets (Subsidiaries to change its or their respective taxpayer identification numbers and may effectuate state organizational numbers unless such sale by merger or consolidation Person shall have provided the Agent with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolvenot less than forty-five days prior written notice.
Appears in 1 contract
Samples: Mortgage Warehousing Credit and Security Agreement (Chartermac)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower and Guarantor will not, nor and will it not permit the Guarantors or REIT to, and Guarantor will not permit any of their respective its Subsidiaries to, become a party to any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: except for (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower Guarantor (other than any Subsidiary that is a GuarantorBorrower) with and into the Borrower Guarantor (it being understood and agreed that in any such event the Borrower Guarantor will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries (other than Borrower) of Guarantor, (iii) any dissolution of a Subsidiary of Guarantor (other than Borrower) that owns no assets, (iv) dispositions permitted by §8.8, and (v) a merger of a Person (other than the Borrower) with the Guarantor (so long as the Guarantor is the surviving entity) or a Subsidiary of the Guarantor (other than Borrower), so long as (A) in the case of a merger with a Subsidiary of Guarantor organized under the laws of a political subdivision of the United States, such Person was organized under the laws of the United States of America or one of its states; (B) the surviving Person is controlled by the Guarantor; (C) the Guarantor shall have given the Agent at least ten (10) Business Days' prior written notice of such merger; (D) such merger is completed as a result of negotiations with the approval of the board of directors or similar body of such Person and is not a so called “hostile takeover”; (E) following such merger, the Guarantor and its Subsidiaries will continue to be engaged solely in the businesses permitted by §7.14; and (F) such merger, together with all other mergers permitted by this §8.4(v) and consummated in the same fiscal year as such merger, shall not increase the Gross Asset Value by more than fifty percent (50%) of the Gross Asset Value as of the end of the previous fiscal year; provided that no such merger or consolidation shall involve any Subsidiary be permitted in the event that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation Default or dissolution Event of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (Default exists immediately before or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and would exist after any such permitted sale, may dissolvegiving effect thereto.
Appears in 1 contract
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the The Borrower will not, nor and will it not permit the Guarantors or any of their respective its Subsidiaries or the REIT to, become a party to effect any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoingcombination, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: Lenders except for (i) the merger or consolidation of (x) one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person) and (y) one or more of the Subsidiaries of the REIT (other than the Borrower or any Subsidiary of the Borrower) with and into the REIT (it being understood and agreed that in any such event the REIT will be the surviving Person), (ii) the merger or consolidation of (x) two or more Subsidiaries of the Borrower and (y) two or more Subsidiaries of the REIT (other than the Borrower); provided that in each case no such merger or consolidation shall involve any Subsidiary that is a Guarantor (unless such the Guarantor will be is the surviving Personentity), (iii) asset sales consummated in accordance with §8.5, and (iiiiv) the liquidation merger or dissolution consolidation, directly or indirectly, of Borrower or the REIT with any Subsidiary of the Borrower that does not own any assets other Person so long as (A) REIT or Borrower, as applicable shall be the continuing and surviving Person (provided that Borrower may not merge with the REIT); (B) Borrower shall have given the Agent and the Lenders at least thirty (30) days’ prior written notice of such Subsidiary is not consolidation or merger; (C) Borrower shall have delivered to the Agent for distribution to each of the Lenders a Guarantor (or if such Subsidiary is Compliance Certificate, calculated on a Guarantorpro forma basis based on information then available to Borrower, so long as evidencing the continued compliance by the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another PersonGuarantors, with such other Person being the surviving entity) subject to compliance if any, with the terms and conditions of this Agreement (and the other Loan Documents, including, without limitation, the financial covenants contained in §9, after giving effect to such consolidation or merger, together with any documentation and information reasonably requested by the Lenders in connection with “know your customer” laws or policies; (D) there is no Default or Event of Default at the time of such consolidation or merger and the consummation of such consolidation or merger does not result in a Default or Event of Default (including without limitation, pursuant to §5.4 7.18); and 8.8)(E) each of the representations and warranties made by the Borrower or any of its Subsidiaries contained in this Agreement, the other Loan Documents or otherwise in connection therewith as or after the date thereof shall be true in all material respects immediately after giving effect to such merger or consolidation (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct only as of such specified date, and after that any such permitted sale, may dissolverepresentation or warranty that is qualified by any materiality standard shall be required to be true and correct in all respects).
Appears in 1 contract
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, not nor will it permit the Guarantors or any of their respective Subsidiaries toto dissolve, become a party to any dissolutionliquidate, liquidationdispose of (including, disposition without limitation, by way of an LLC Division) all or substantially all of its assets or business, mergermerge, reorganizationreorganize, consolidation consolidate or enter into any other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Agent and the Majority Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a GuarantorGuarantor or an Approved JV) with and into the Borrower (it being understood and agreed that in any such event the Borrower Borrower, as applicable, will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor or an Approved JV unless such Guarantor or such Approved JV will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor or an Approved JV (or if such Subsidiary is a GuarantorGuarantor or an Approved JV, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 5.5), (iv) the merger or consolidation of a Subsidiary Guarantor or an Approved JV into (A) REIT or the Borrower, provided that REIT or the Borrower, as applicable, shall be the continuing or surviving Person, (B) another Subsidiary Guarantor or (subject to compliance with the terms of this Agreement) another Approved JV, or (C) any other Person, directly or indirectly or as contemplated in §8.3(o), subject to compliance with the terms of this Agreement and provided that, if it owns a Borrowing Base Asset and is not the surviving entity, then the Borrower has complied with §5.65.4 to remove such Borrowing Base Asset from being included in the calculation of the Borrowing Base Availability; and (v) the merger or consolidation, directly or indirectly or as contemplated in §8.3(o), of REIT or the Borrower with any other Person so long as (X) REIT or the Borrower, as applicable, shall be the continuing and surviving Person; (Y) the Borrower shall have given the Agent and the Lenders at least 30 days’ prior written notice of such consolidation or merger; 116 and (Z) the Borrower shall have delivered to the Agent for distribution to each of the Lenders a Compliance Certificate, calculated on a pro forma basis based on information then available to the Borrower, evidencing the continued compliance by the Borrower, Guarantors and Approved JVs with the terms and conditions of this Agreement and the other Loan Documents, including, without limitation, the financial covenants contained in §9, after giving effect to such consolidation or merger, together with any documentation and information reasonably requested by the Lenders in connection with “know your customer” laws or policies. Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolve.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Healthcare Trust, Inc.)
Merger, Consolidation. Other than with respect to or in connection with the Acquisition as described in the Structure Chart (including the Merger) or any disposition expressly permitted under §Section 8.8, the Borrower Borrowers will not, nor will it permit the Guarantors any Guarantor or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisitioncombination, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Administrative Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) Borrowers with and into the a Borrower (it being understood and agreed that that, in any such event the Borrower event, if Parent is a party to such transaction, Parent will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the BorrowerBorrowers; provided that no such merger or consolidation shall involve any Subsidiary that is a Borrower or a Guarantor unless such a Borrower or Guarantor will be the surviving Person, and (iii) the merger, liquidation or dissolution of any Subsidiary of the a Borrower that does not own any assets so long as any assets previously owned by such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has were disposed of its assets in accordance with this Agreement. A Subsidiary of the Agreement and (iv) any merger, consolidation or other business combination to effect an Investment permitted under Section 8.3 (it being understood and agreed that in any such event (A) if a Borrower may sell all of its assets (and may effectuate is a party to such sale by merger or consolidation with another Persona transaction, with such other Person being a Borrower will be the surviving entityPerson and (B) subject if Parent is a party to compliance with such transaction, Parent will be the terms of this Agreement (including, without limitation, §§5.4 and 8.8surviving Person), and after any such permitted sale, may dissolve.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Griffin-American Healthcare REIT III, Inc.)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the The Borrower will not, nor and will it not permit the Guarantors or cause any of their respective its Restricted Subsidiaries to, become a party to liquidate, wind up or dissolve, or enter into any dissolutionconsolidation, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation merger or other business combination combination, or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as do any of the foregoing; provided, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoinghowever, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or that:
(a) any Lender: (i) the merger or consolidation of one or more of the Subsidiaries Restricted Subsidiary of the Borrower (other than any Subsidiary that is a Guarantor) may be merged or consolidated with and into the Borrower or any other Restricted Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, leased, transferred or otherwise disposed of in one transaction or series of transactions to the Borrower or any Subsidiary Guarantor; provided that (i) in the case of any such merger or consolidation with or into the Borrower, (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger or consolidation, shall have executed and delivered a customary reaffirmation agreement with respect to its obligations under the Guaranty and the other Credit Documents; it being understood and agreed that in any such event if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower will be under this Agreement and the surviving Person)other Credit Documents, and (ii) in the case of any such merger or consolidation with or into any Subsidiary Guarantor, either (x) a Subsidiary Guarantor (other than a merger or consolidation involving the Borrower) shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of two the relevant Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or more Subsidiaries (y) the relevant transaction shall be treated as an Investment and shall comply with Section 8.05;
(b) Permitted Acquisitions shall be permitted;
(c) the Transactions shall be permitted;
(d) any Subsidiary that is not a Subsidiary Guarantor may merge or consolidate with another Person (other than any Credit Party) so long as (x) the surviving entity is a Subsidiary of the Borrower; provided that no , (y) such merger or consolidation shall involve constitute or be necessary to effectuate a Permitted Acquisition and the applicable conditions and requirements of Sections 6.10 and 6.11 shall be satisfied and (z) immediately after giving effect thereto, no Event of Default would exist;
(e) in connection with any acquisition or similar Investment permitted under Section 8.05, any Restricted Subsidiary of the Borrower may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided that (A) the Person surviving such merger shall be a Wholly Owned Subsidiary of the Borrower and (B) in the case of any such merger to which any Credit Party (other than the Borrower) is a Guarantor unless party, such Guarantor will be Credit Party is the surviving Person, and ; and
(iiif) the following transactions shall be permitted: (i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower that does not own or any Restricted Subsidiary receives any assets of any dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Credit Party that results in a distribution of assets to any Restricted Subsidiary that is not a Credit Party, such distribution shall be treated as an Investment and shall comply with Section 8.05 (other than in reliance on clause (o) thereof); (ii) any merger, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 8.01 (other than clause (a), (b), or this clause (f)) or (B) any Investment permitted under Section 8.05; and (iii) the conversion of Holdings, the Borrower or any Restricted Subsidiary into another form of entity, so long as such Subsidiary is conversion does not a Guarantor (or if such Subsidiary is a Guarantor, so long as adversely affect the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary value of the Borrower may sell all of its assets Guaranty or Collateral, if any; provided, however, that after giving effect thereto (i) any Domestic Subsidiary remains a Domestic Subsidiary and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity(ii) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolveCredit Party remains a Credit Party.
Appears in 1 contract
Samples: Credit Agreement (Metaldyne Performance Group Inc.)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, The Borrower and the Borrower Guarantors will not, nor and will it not permit the Guarantors or any of their respective Subsidiaries to, become a party to effect any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: Lenders except for (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor (unless such the Guarantor will be is the surviving Personentity), and (iii) asset sales consummated in accordance with §5.3 or §8.8, (iv) the liquidation merger or dissolution consolidation of any a Subsidiary of the REIT (other than the Borrower) with and into the REIT, (v) the merger or consolidation, directly or indirectly, of Borrower that does not own or REIT with any assets other Person so long as (A) REIT or Borrower, as applicable, shall be the continuing and surviving Person; (B) Borrower shall have given the Agent and the Lenders at least thirty (30) days’ prior written notice of such Subsidiary is not consolidation or merger; (C) Borrower shall have delivered to the Agent for distribution to each of the Lenders a Guarantor (or if such Subsidiary is Compliance Certificate, calculated on a Guarantorpro forma basis based on information then available to Borrower, so long as evidencing the continued compliance by the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance Guarantors with the terms and conditions of this Agreement (and the other Loan Documents, including, without limitation, the financial covenants contained in §§5.4 9, after giving effect to such consolidation or merger, together with any documentation and 8.8information reasonably requested by the Lenders in connection with “know your customer” laws or policies; (D) such consolidation or merger is not the result of a hostile takeover; (E) there is no Default or Event of Default at the time of such consolidation or merger and the consummation of such consolidation or merger does not result in a Default or Event of Default; and (F) each of the representations and warranties made by or on behalf of the Borrower, the Guarantors or any of their respective Subsidiaries contained in this Agreement, the other Loan Documents or in any document or instrument delivered pursuant to or in connection with this Agreement shall be true in all material respects immediately after giving effect to such merger or consolidation (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct only as of such specified date, and that any representation or warranty that is qualified by any materiality standard shall be required to be true and correct in all respects), and after (vi) the consummation of the Colonial Merger Transactions provided that no Default of Event or Default shall result upon the consummation of the Colonial Merger Transactions. The consent to the Colonial Merger Transactions set forth in clause (iv) above is strictly limited to the Colonial Merger Transactions described in this Agreement and shall not constitute a waiver or modification of any such permitted sale, may dissolverequirement of obtaining the Lenders’ consent to any future merger or other transfer as required by this §8.
Appears in 1 contract
Samples: Credit Agreement (Mid America Apartment Communities Inc)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, nor will it Borrower permit the Guarantors REIT or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: except for (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of Borrower, (iii) any dissolution of a Subsidiary that owns no assets, (iv) dispositions permitted by §8.8, and (v) a merger of a Person with (x) Borrower (so long as Borrower is the surviving entity) or (y) a Subsidiary of the Borrower (other than a Subsidiary which is a Subsidiary Guarantor or a Subsidiary that in either case directly or indirectly owns an Unencumbered Property), so long as (A) in the case of a merger with a Subsidiary of Borrower organized under the laws of a political subdivision of the United States, such Person was organized under the laws of the United States of America or one of its states; (B) if such Subsidiary is a Subsidiary Guarantor, such Subsidiary is the survivor of such merger, and if such Subsidiary is not a Subsidiary Guarantor, the surviving Person is controlled by the Borrower; (C) the Borrower shall have given the Agent at least ten (10) Business Days’ prior written notice of such merger; (D) such merger is completed as a result of negotiations with the approval of the board of directors or similar body of such Person and is not a so called “hostile takeover”; (E) following such merger, the Borrower and its Subsidiaries will continue to be engaged solely in the businesses permitted by §7.14; and (F) such merger, together with all other mergers permitted by this §8.4(v) and consummated in the same fiscal year as such merger, shall not increase the Gross Asset Value by more than fifty percent (50%) of the Gross Asset Value as of the end of the previous fiscal year; provided that no such merger or consolidation shall involve any Subsidiary be permitted in the event that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation Default or dissolution Event of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (Default exists immediately before or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and would exist after any such permitted sale, may dissolvegiving effect thereto.
Appears in 1 contract
Samples: Term Loan Agreement (Dupont Fabros Technology, Inc.)
Merger, Consolidation. Other than with respect Any Person (a) into which the Performance Guarantor may be merged or consolidated, (b) resulting from any amalgamation, merger or consolidation to which the Performance Guarantor shall be a party, (c) which acquires by conveyance, transfer, or in connection with any disposition permitted under §8.8, the Borrower will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of all or lease substantially all of its the assets of the Performance Guarantor, or business(d) succeeding to the business of the Performance Guarantor, in any of the foregoing cases shall execute an agreement of assumption to perform every obligation of the Performance Guarantor under this Performance Guarantee and, whether or not such assumption agreement is executed, shall be the successor to the Performance Guarantor under this Performance Guarantee without the execution or filing of any document or any further act on the part of any of the parties to this Performance Guarantee, anything in this Performance Guarantee to the contrary notwithstanding; provided, however, that nothing contained herein shall be deemed to release the Performance Guarantor from any obligation as Performance Guarantor hereunder. The Performance Guarantor shall provide prompt notice of any amalgamation, merger, reorganizationconsolidation, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of succession pursuant to this Section to the foregoing, in each case without the prior written consent of the Required LendersBeneficiary. Notwithstanding the foregoing, so long the Performance Guarantor shall not amalgamate, merge or consolidate with any other Person or permit any other Person to become a successor to the Performance Guarantor's business, unless (a) immediately after giving effect to such transaction, no representation, warranty or covenant made pursuant to Section 7 shall have been breached (for purposes hereof, such representations and warranties shall speak as of the date of the consummation of such transaction) and no Default or Event of Default has shall have occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Personcontinuing, and (iiib) the liquidation Performance Guarantor shall have delivered to the Beneficiary an officer's certificate stating that such amalgamation, consolidation, merger or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower succession and such Subsidiary agreement of assumption comply with the provisions of §5.5 this Section and §5.6). Nothing that all conditions precedent, if any, provided for in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate Performance Guarantee relating to such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolvetransaction have been complied with.
Appears in 1 contract
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8Section 7.7, the Borrower will not, not nor will it permit the Guarantors or any of their respective Subsidiaries toto dissolve, become a party to any dissolutionliquidate, liquidationdispose of (including, disposition without limitation, by way of an LLC Division) all or substantially all of its assets or business, mergermerge, reorganizationreorganize, consolidation consolidate or enter into any other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Agent and the Majority Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: :
(a) any Person may merge or consolidate with or into (i) the merger Borrower or consolidation of the REIT, provided that the Borrower or the REIT, as applicable, shall be the continuing or surviving Person and there is no Change in Control, or (ii) any one or more of the Subsidiaries of the Borrower other Subsidiaries, including newly formed Subsidiaries, provided that (other than x) when any Subsidiary Guarantor is merging or consolidating with or into another Subsidiary that is not a Subsidiary Guarantor) with and into , the Borrower (it being understood and agreed that in any such event the Borrower will Subsidiary Guarantor shall be the continuing or surviving Person and (y) when any Joint Venture Guarantor is merging or consolidating with or into another Person that is not a Joint Venture Guarantor, the Joint Venture Guarantor shall be the continuing or surviving Person), ; and
(iib) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Any Subsidiary that is not a Guarantor unless such Guarantor will be the surviving Loan Party or a Subsidiary Owner may merge into or consolidate with any other Person, and (iii) the liquidation or dissolution of permit any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance merge into or consolidate with the terms of this Agreement (includingit, without limitationor liquidate or dissolve, §§5.4 and 8.8), and after any such permitted sale, may dissolvepursuant to an LLC Division.
Appears in 1 contract
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolutiondissolve, liquidationliquidate, disposition dispose of (including, without limitation, by way of an LLC Division) all or substantially all of its assets or business, mergermerge, reorganizationreorganize, consolidation consolidate or do any other business combination or agree to effect any asset acquisitioncombination, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own or lease any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 5.4), and (iv) the merger or consolidation, directly or indirectly, of Borrower with any other Person so long as (A) Borrower shall be the continuing and surviving Person; (B) Borrower shall have given the Agent and the Lenders at least thirty (30) days’ prior written notice of such consolidation or merger; (C) Borrower shall have delivered to the Agent for distribution to each of the Lenders a Compliance Certificate, calculated on a pro forma basis based on information then available to Borrower, evidencing the continued compliance by the Borrower, the REIT and Guarantors with the terms and conditions of this Agreement and the other Loan Documents, including, without limitation, the financial covenants contained in §5.69, after giving effect to such consolidation or merger, together with any documentation and information reasonably requested by the Lenders in connection with “know your customer” laws or policies; (D) such consolidation or merger is not the result of a hostile takeover; (E) there is no Default or Event of Default at the time of such consolidation or merger and the consummation of such consolidation or merger does not result in a Default or Event of Default (including without limitation, any Change of Control); and (F) each of the representations and warranties made by or on behalf of the Borrower, the REIT, the Guarantors or any of their respective Subsidiaries contained in this Agreement, the other Loan Documents or in any document or instrument delivered pursuant to or in connection with this Agreement shall be true in all material respects immediately after giving effect to such merger or consolidation (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct only as of such specified date, and that any representation or warranty that is qualified by any materiality standard shall be required to be true and correct in all respects). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolve.
Appears in 1 contract
Samples: Credit Agreement (Modiv Inc.)
Merger, Consolidation. Other than with respect to or in connection with any Internalization permitted under §7.15 or any disposition permitted under §8.8, the Borrower will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Majority Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 5.7), or (iv) the acquisition of all or substantially all of the assets of another Person in a bona fide arm’s length transaction that otherwise satisfies the requirements of §7.14 and §5.6). Nothing 8.3 and which does not create or result in this §8.4 shall prohibit the dissolution a Default or Event of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets Default (and may effectuate provided that if any such sale by merger or consolidation with another Personaffects any Company or owner of a Mortgaged Property, with then prior to any such merger or consolidation Borrower shall give prior written notice of such event to Agent and shall cause to be executed and delivered to Agent such additional amendments, documents, opinions, title endorsements or title policies and such other Person being matters as Agent may reasonably require in order to continue Agent’s first priority perfected lien and security interest in the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8Collateral), and after any such permitted sale, may dissolve.
Appears in 1 contract
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower The Loan Parties will not, nor and will it not permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination combination, or agree to or effect any asset acquisition, acquisition or stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case foregoing without the prior written consent of the Required Lenders. Notwithstanding , except that:
(a) any Subsidiary of the foregoing, so long as no Default Borrower may be merged or Event of Default has occurred and is continuing immediately before and after giving effect thereto, consolidated with or into the following Borrower (provided that the Borrower shall be permitted without the consent of the Agent continuing or surviving corporation) or with or into any Lender: Subsidiary that is a Guarantor (provided that (i) such Guarantor shall be the merger continuing or consolidation of one surviving corporation or more of (ii) simultaneously with such transaction, the Subsidiaries continuing or surviving corporation shall become a Guarantor and the Borrower shall comply with §7.21 in connection therewith);
(b) any Subsidiary of the Borrower may dispose of any or all of its assets (other than upon voluntary liquidation or otherwise) to Borrower or any Subsidiary that is a Guarantor;
(c) an Excluded Subsidiary pursuant to clause (i) of the definition thereof (i) may be merged or consolidated with or into Borrower or any other Subsidiary of Borrower and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution may dispose of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and upon voluntary liquidation or otherwise) pro rata to its equity holders;
(d) Borrower or any Subsidiary may effectuate such sale consummate any Investment otherwise permitted by §8.3(r) by merger or consolidation, provided that if (i) such merger or consolidation with another Personinvolves the Borrower, with the Borrower is the continuing or surviving corporation and (ii) if such other Person being merger or consolidation involves a Guarantor, such Guarantor is the continuing or surviving entitycorporation; and
(e) subject Forestar Group may consummate the Credo Acquisition pursuant to compliance and in accordance with the terms Credo Merger Agreement so long as the Credo Closing Conditions are satisfied at the time of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolveconsummation.
Appears in 1 contract
Samples: Revolving and Term Credit Agreement (Forestar Group Inc.)
Merger, Consolidation. Other than with respect to Dissolu- tion, and Sale.
(i) The Borrower shall not merge or in connection consolidate with any disposition permitted under §8.8other entity, the Borrower will notdissolve or terminate its legal existence, nor will it or, directly or indirectly, sell, lease, transfer or otherwise dispose of, or permit the Guarantors or any of their respective its Material Subsidiaries toto sell, become a party to any dissolutionlease, liquidation, disposition transfer or otherwise dispose of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any the properties of the foregoingBorrower and its Material Subsidiaries (taken as a whole), unless in each case without (1) for any such transaction involving the prior written consent Borrower, the successor entity or entities, each of which shall be organized under the laws of Colombia or any coun- try that is a member of the Required Lenders. Notwithstanding Organization for Economic Co- operation and Development (OECD), shall assume all the foregoingobligations of the Borrower under this Agreement and the Notes, so long as (2) immediately after giving effect to the transaction, no Default or Event of Default has or Potential Default shall have occurred and is continuing immediately before be continuing, and after giving effect thereto(3) for any such transaction involv- ing the Borrower, the Borrower delivers such certificates, opinions of its counsel and other documents regarding such transaction as may be required by the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent.
(ii) For the avoidance of doubt: (A) in addition to the foregoing permitted transac- tions, the following shall be transactions are expressly permitted without the consent under this Section 7.02(b): (1) mergers and consolidations of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii2) the liquidation mergers, xxxxxxx- dations, sales, leases, transfers, divestitures or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor reorganiza- tions among Subsidiaries; and (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing B) nothing in this §8.4 Section 7.02(b) shall prohibit the dissolution Borrower or any Subsidiary from entering into build-lease-transfer, build-operate-transfer or similar project financing arrangements, provided that such arrangements are for (x) new greenfield projects or (y) the expansion of a Subsidiary existing project assets or properties in which has disposed of its such arrangements extend only to the expansion assets and not in accordance with this Agreement. A Subsidiary of any substantial respect to the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolveexisting assets.
Appears in 1 contract
Samples: Credit Agreement
Merger, Consolidation. Other than Neither STLC nor GMHE shall consolidate with respect to or in connection with merge into any disposition permitted under §8.8other Person or convey, the Borrower will not, nor will it permit the Guarantors transfer or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of lease all or substantially all of its assets or businessas an entirety to any Person, merger, reorganization, unless:
(i) the successor entity formed by such consolidation or into which it is merged or the successor entity which acquires by conveyance, transfer or lease all or substantially all of its assets as an entirety shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia which has a substantial part of its properties and assets located within and operates substantially within, the United States of America, and which is qualified under the requirements of the FCC and any applicable statute, regulation or order to assume STLC's or GMHE's, as the case may be, obligations with respect to the Satellite and/or Transponders then subject to this Lease;
(ii) such successor corporation shall expressly assume in writing by instrument or instruments enforceable against it reasonably satisfactory in form and substance to Lessor and Owner Participant the due and punctual payment, performance and observance of all obligations of STLC or GMHE, as the case 62 may be, under this Lease and any other business combination Operative Document or agree Xxxxxx Agreement to effect which STLC or GMHE, as the case may be, is a party in any asset acquisitioncapacity, stock acquisition or other acquisition individually or in a series of transactions which may have a similar with the same effect as any of the foregoingif such corporation had originally been named Lessee herein or had been a party thereto;
(iii) immediately after giving effect to such transaction, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Bankruptcy Default or Event of Default has occurred shall exist and is continuing immediately before and after giving effect thereto, the following Guarantee Agreement (or any successor agreement) shall be permitted without in full force and effect; and
(iv) STLC or GMHE, as the consent case may be, shall have delivered to Lessor, Owner Participant and Indenture Trustee an opinion of counsel in scope and substance reasonably satisfactory to each stating that such consolidation, merger, conveyance, transfer or lease and the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), assumption agreement required by clause (ii) the merger above comply with this Section 13. Upon any consolidation or consolidation merger, or any conveyance, transfer or lease of two all or more Subsidiaries substantially all of the Borrower; provided that no such merger assets of STLC or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving PersonGMHE, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets case may be, as an entirety in accordance with this AgreementSection 13, the successor corporation formed by such consolidation or into which STLC or GMHE, as the case may be, is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, Lessee under the Operative Documents to which STLC or GMHE, as the case may be, is a party in any capacity with the same effect as if such successor corporation had been named Lessee herein and thereto. A Subsidiary No such conveyance, transfer or lease of all or substantially all of the Borrower assets of STLC or GMHE, as the case may sell all be, as an entirety shall have the effect of releasing STLC or GMHE, as the case may be, or any successor corporation which shall theretofore have become such in the manner prescribed in this Section 13 from its assets (and liability hereunder or under the other Operative Documents or Xxxxxx Agreement to which STLC or GMHE, as the case may effectuate such sale by merger or consolidation with another Personbe, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after is a party in any such permitted sale, may dissolvecapacity.
Appears in 1 contract
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required LendersAgent. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.65.5). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolve.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (American Realty Capital Healthcare Trust Inc)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of (including, without limitation, by way of an LLC Division) all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6), (iv) the disposal of Real Estate in the ordinary course of business and for fair value; provided that if such Real Estate is a Borrowing Base Property, Borrower shall have complied with the terms of this Agreement; and (v)
(A) a merger of a Person with Borrower, so long as Borrower is the surviving entity, (B) a merger of an entity that has elected to obtain and qualifies for REIT Status and which is the general partner or other owner of a Person simultaneously merging with Borrower or a Subsidiary of Borrower, with the REIT, so long as the REIT is the surviving entity and the provisions of this Agreement are not violated, in each instance so long as (1) Borrower shall have given the Agent and the Lenders at least 30 days’ prior written notice of such consolidation or merger; (2) REIT and Borrower shall have provided to the Agent and the Lenders all documentation and other information that the Agent (on its own behalf or on behalf of any Lender) requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act; (3) the Agent has not advised Borrower that such merger or consolidation would result in a violation of any concentration or lending limits applicable by law or regulation applicable to the Agent or any such Lender; (4) immediately prior thereto, and immediately thereafter and after giving effect thereto, all representations and warranties in the Loan Documents shall be deemed to be made and repeated and no Default or Event of Default has occurred or would result therefrom; (5) in the case of a merger with REIT or Borrower, such Person was organized under the laws of the United States of America or one of its states; (6) such merger is completed as a result of negotiations with the approval of the board of directors or similar body of such Person and is not a so called “hostile takeover”; and (7) at the time of consummation of the merger or consolidation, a Borrower shall have delivered to the Agent for distribution to each of the Lenders a Compliance Certificate, calculated on a pro forma basis evidencing the continued compliance by the Borrower and the Guarantors with the terms and conditions of this Agreement and the other Loan Documents, after giving effect to such consolidation or merger. Nothing in this Section shall be deemed to prohibit the leasing of all or portions of Real Estate in the ordinary course of business for occupancy by the tenants thereunder, or (ii) the sale of Real Estate in the ordinary course of Borrower’s business for fair value on an arms-length basis and in accordance with the terms and conditions of this Agreement. Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolve.
Appears in 1 contract
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.88.8 or a reorganization permitted by §7.17(b), the Borrower will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.65.5). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by a transfer of ownership of such Subsidiary or by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolve.
Appears in 1 contract
Samples: Credit Agreement (NorthStar Healthcare Income, Inc.)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the The Borrower and Guarantors will not, nor and will it not permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolution, liquidation, disposition of (including, without limitation, by way of an LLC Division) all or substantially all of its assets or business, merger, reorganization, consolidation or other business combination or agree to effect any asset acquisition, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: except for (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower, (iii) any dissolution of a Subsidiary of the Borrower that owns no assets, (iv) dispositions permitted by §8.8, (v) a merger of a Person with the Borrower or a Subsidiary of the Borrower, so long as (A) in the case of a merger with the Borrower or a Subsidiary of the Borrower organized under the laws of a political subdivision of the United States, such Person was organized under the laws of the United States of America or one of its states; (B) (i) in case of a merger with the Borrower, the surviving person shall be the Borrower, (ii) in the case of a merger with a Subsidiary Guarantor, the surviving person shall be a Subsidiary Guarantor or, with the prior written approval of the Administrative Agent, becomes a Subsidiary Guarantor, and (iii) in the case of a merger with a Subsidiary that is not a Subsidiary Guarantor, the surviving person shall be controlled by the Borrower; (C) the Borrower shall have given the Agent at least ten (10) Business Days’ prior written notice of such merger; (D) such merger is completed as a result of negotiations with the approval of the board of directors or similar body of such Person and is not a so called “hostile takeover”; and (E) following such merger, Parent Company and its Subsidiaries will continue to be engaged solely in the businesses permitted by §7.14, and (vi) Investments constituting asset or equity acquisitions permitted by §8.3 and which are not mergers, reorganizations, consolidations or business combinations; provided that no such merger merger, consolidation or consolidation acquisition shall involve any Subsidiary be permitted in the event that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation Default or dissolution Event of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (Default exists immediately before or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.6). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and would exist after any such permitted sale, may dissolvegiving effect thereto.
Appears in 1 contract
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the The Borrower will not, nor will it permit the Subsidiary Guarantors or any of their respective Subsidiaries to, become a party to any dissolutiondissolve, liquidationliquidate, disposition dispose of all or substantially all of its assets or business, mergermerge, reorganizationreorganize, consolidation consolidate or do any other business combination or agree to effect any asset acquisitioncombination, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 5.4), and §5.6). Nothing in this §8.4 (iv) the merger or consolidation, directly or indirectly, of Borrower with any other Person so long as (A) Borrower shall prohibit be the dissolution continuing and surviving Person; (B) Borrower shall have given the Agent and the Lenders at least thirty (30) days’ prior written notice of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary such consolidation or merger; (C) Borrower shall have delivered to the Agent for distribution to each of the Lenders a Compliance Certificate, calculated on a pro forma basis based on information then available to Borrower, evidencing the continued compliance by the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance Guarantors with the terms and conditions of this Agreement (and the other Loan Documents, including, without limitation, the financial covenants contained in §§5.4 9, after giving effect to such consolidation or merger, together with any documentation and 8.8), and after any such permitted sale, may dissolve.information reasonably requested by the Lenders in connection with “know your customer” laws or policies;
Appears in 1 contract
Samples: Credit Agreement (Monogram Residential Trust, Inc.)
Merger, Consolidation. Other than with respect to or in connection with any disposition permitted under §8.8, the Borrower will not, nor will it permit the Guarantors or any of their respective Subsidiaries to, become a party to any dissolutiondissolve, liquidationliquidate, disposition dispose of all or substantially all of its assets or businessbusiness (including, mergerwithout limitation, reorganizationby way of a Division), consolidation merge, reorganize, consolidate or do any other business combination or agree to effect any asset acquisitioncombination, stock acquisition or other acquisition individually or in a series of transactions which may have a similar effect as any of the foregoing, in each case without the prior written consent of the Required Lenders. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing immediately before and after giving effect thereto, the following shall be permitted without the consent of the Agent or any Lender: (i) the merger or consolidation of one or more of the Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the Borrower (it being understood and agreed that in any such event the Borrower will be the surviving Person), (ii) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless such Guarantor will be the surviving Person, and (iii) the liquidation or dissolution of any Subsidiary of the Borrower that does not own any assets so long as such Subsidiary is not a Guarantor (or if such Subsidiary is a Guarantor, so long as the Borrower and such Subsidiary comply with the provisions of §5.5 and §5.65.4). Nothing in this §8.4 shall prohibit the dissolution of a Subsidiary which has disposed of its assets in accordance with this Agreement. A Subsidiary of the Borrower may sell all of its assets (and may effectuate such sale by merger or consolidation with another Person, with such other Person being the surviving entity) subject to compliance with the terms of this Agreement (including, without limitation, §§5.4 and 8.8), and after any such permitted sale, may dissolve.
Appears in 1 contract
Samples: Credit Agreement (GTJ Reit, Inc.)
