Mergers and Consolidations. The Borrower shall not, nor shall it cause or permit any of the Guarantors to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower and the Restricted Subsidiaries taken as a whole, or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (1) any Person may merge or consolidate into the Borrower or any Guarantor in a transaction in which the Borrower or, in a merger or consolidation to which the Borrower is not party, such Guarantor is the surviving corporation, (2) the Borrower or any Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all the assets of the Borrower and the Restricted Subsidiaries taken as a whole to, any Person, provided that the resulting, surviving or transferee Person is a corporation, limited liability company or partnership organized and validly existing under the laws of the United States of America or any jurisdiction thereof and expressly assumes all of the obligations of the Borrower, or of such Guarantor, as applicable, under the Loan Documents, (3) any Guarantor may dispose of all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor and (4) any Guarantor may liquidate (other than in connection with a merger or a consolidation which shall be governed by the other clauses of this Section 6.05) and distribute its assets ratably to its shareholders if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders.
Appears in 9 contracts
Samples: Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, Inc.)
Mergers and Consolidations. The Borrower shall will not, nor shall it cause or and will not permit any of the Guarantors Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower and the Restricted Subsidiaries taken as a whole, or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing:
(1i) any Person may merge with or consolidate into the Borrower in a transaction in which (x) such Borrower is the surviving corporation or (y) the continuing or surviving entity shall have assumed all of the obligations of such Borrower hereunder pursuant to an instrument in form and substance satisfactory to the Administrative Agent and shall have delivered such proof of corporate action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by the Borrower pursuant to Section 4.01 upon the Effective Date or as the Administrative Agent shall have requested and the net worth (determined on a consolidated basis in accordance with GAAP) of the continuing or surviving entity immediately after giving effect thereto shall be greater than or equal to the net worth (so determined) of such Borrower immediately prior to giving effect thereto;
(ii) any Guarantor Person (other than the Borrower) may merge with or into any Restricted Subsidiary of the Borrower in a transaction in which the Borrower or, in a merger or consolidation to which the Borrower is not party, such Guarantor is the surviving corporation, (2) the Borrower or any Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all the assets of the Borrower and the Restricted Subsidiaries taken as a whole to, any Person, provided that the resulting, surviving or transferee Person entity is a corporation, limited liability company or partnership organized and validly existing under the laws of the United States of America or any jurisdiction thereof and expressly assumes all of the obligations Restricted Subsidiary of the Borrower, provided that, if any such merger shall be between a Subsidiary Guarantor and a Non-Guarantor Subsidiary (or of such another Person that is not a Subsidiary Guarantor), as applicable, under the Loan Documents, survivor shall be or become a Subsidiary Guarantor;
(3iii) any Guarantor may dispose Restricted Subsidiary of all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor and (4) any Guarantor may liquidate (other than in connection with a merger or a consolidation which shall be governed by the other clauses of this Section 6.05) and distribute its assets ratably to its shareholders dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the LendersLenders (and if such Restricted Subsidiary in a Subsidiary Guarantor, any assets of such Subsidiary Guarantor are transferred to the Borrower or another Subsidiary Guarantor, or otherwise transferred to a Restricted Subsidiary in compliance with Section 6.08 (other than Section 6.08(n)); and
(iv) any Restricted Subsidiary (other than the Borrower) may merge into any other Person in order to effect a Disposition permitted by this Agreement. Notwithstanding the foregoing, in no event shall the Borrower reorganize in a jurisdiction that is not a state of the United States of America or the District of Columbia.
Appears in 4 contracts
Samples: Amendment (SPRINT Corp), Incremental Facility Amendment (SPRINT Corp), Incremental Facility Amendment (SPRINT Corp)
Mergers and Consolidations. The Borrower shall notNot, nor shall it cause or and not permit any of the Guarantors Restricted Subsidiary to, consolidate with or merge into or consolidate with any other Personcorporation or convey, transfer or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose substantially all of (its assets in one a single transaction or in a series of transactions) all or substantially all the assets transactions to any Person (whether now owned or hereafter acquired) except that a Restricted Subsidiary of the Borrower and the Restricted Subsidiaries taken as a wholemay (x) consolidate with or merge with, or liquidate convey, transfer or dissolvelease substantially all of its assets in a single transaction or series of transactions to, except that if at the time thereof and immediately after giving effect thereto no Event Borrower or another Restricted Subsidiary of Default or Default shall have occurred and be continuing (1) any Person may merge or consolidate into the Borrower or any Guarantor other Person that will, after giving effect to the consummation of such transaction or series of transactions, constitute a Restricted Subsidiary and (y) convey, transfer or lease all of its assets in a transaction in which compliance with the provisions of Section 7.05), provided that the foregoing restriction does not apply to the consolidation or merger of the Borrower or, in a merger or consolidation to which the Borrower is not party, such Guarantor is the surviving corporation, (2) the Borrower or any Guarantor may merge into or consolidate with, or sellthe conveyance, transfer, transfer or lease or otherwise dispose of all or substantially all of the assets of the Borrower and the Restricted Subsidiaries taken as in a whole single transaction or series of transactions to, any PersonPerson so long as (i) the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, provided that transfer or lease substantially all of the resultingassets of the Borrower, surviving or transferee Person is as the case may be (the “Successor Corporation”), shall be a solvent corporation, limited liability company or partnership other limited liability entity organized and validly existing under the laws of the United States of America America, any State thereof or any jurisdiction thereof and expressly assumes the District of Columbia, (ii) the Successor Corporation (if not the Borrower) agrees in writing to assume all of the obligations of the BorrowerBorrower under this Agreement and each other Loan Document to which the Borrower is a party, and (iii) immediately after giving effect to such transaction no Default or Event of Default would exist. No such Guarantorconveyance, as applicable, under the Loan Documents, (3) any Guarantor may dispose transfer or lease of substantially all of its the assets (upon voluntary liquidation or otherwise) to of the Borrower shall have the effect of releasing the Borrower or any other Guarantor and (4) any Guarantor may liquidate (other than in connection with a merger Successor Corporation from its liability under this Agreement or a consolidation which shall be governed by the other clauses of this Section 6.05) and distribute its assets ratably to its shareholders if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the LendersLoan Documents.
Appears in 3 contracts
Samples: Credit Agreement (Aar Corp), Credit Agreement (Aar Corp), Credit Agreement (Aar Corp)
Mergers and Consolidations. The Borrower shall notWind up, nor shall it cause or permit any of the Guarantors to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower and the Restricted Subsidiaries taken as a whole, or liquidate or dissolvedissolve its affairs or consummate a merger or consolidation, except that if at the time thereof and immediately after giving effect thereto no Event of Default following shall be permitted:
(a) Asset Sales or Default shall have occurred and be continuing other dispositions permitted by Section 6.06;
(1b) acquisitions permitted by Section 6.07;
(i) any Person Company may merge or consolidate with or into the Borrower or any Subsidiary Guarantor (as long as Borrower is the surviving Person in the case of any merger or consolidation involving Borrower and a transaction Subsidiary Guarantor is the surviving Person and remains a Wholly Owned Subsidiary of Borrower in which any other case); provided that the Borrower orLien on and security interest in such property granted or to be granted in favor of the Collateral Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.11 or Section 5.12, in as applicable and (ii) any Subsidiary that is not a Subsidiary Guarantor may merge or consolidate with or into any other Subsidiary that is not a Subsidiary Guarantor;
(d) a merger or consolidation to which the Borrower is not partypursuant to, such Guarantor is the surviving corporation, (2) the Borrower or any Guarantor may merge into or consolidate and in accordance with, the definition of “Permitted Acquisition” to the extent necessary to consummate such Permitted Acquisition;
(e) a merger, dissolution, liquidation, consolidation, amalgamation or selldisposition permitted by Section 6.06; and
(f) any Subsidiary may dissolve, transfer, lease liquidate or otherwise dispose of all or substantially all the assets of the Borrower and the Restricted Subsidiaries taken as a whole to, wind up its affairs at any Person, time; provided that the resultingsuch dissolution, surviving liquidation or transferee Person is a corporation, limited liability company or partnership organized and validly existing under the laws of the United States of America or any jurisdiction thereof and expressly assumes all of the obligations of the Borrower, or of such Guarantorwinding up, as applicable, under could not reasonably be expected to have a Material Adverse Effect. To the Loan Documentsextent the Required Lenders or all the Lenders, (3) any Guarantor may dispose of all of its assets (upon voluntary liquidation or otherwise) to as applicable, waive the Borrower or any other Guarantor and (4) any Guarantor may liquidate (other than in connection with a merger or a consolidation which shall be governed by the other clauses provisions of this Section 6.05 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.05, in each case so long as Section 6.09 is also complied with, such Collateral (unless sold to a Loan Party) shall be sold automatically free and distribute its assets ratably to its shareholders if the Borrower determines in good faith that such liquidation or dissolution is in the best interests clear of the Liens created by the Security Documents, and, so long as Borrower and is not materially disadvantageous shall have provided the Agents such certifications or documents as any Agent shall reasonably request in order to demonstrate compliance with this Section 6.05, the LendersAgents shall take all actions they deem appropriate in order to effect the foregoing.
Appears in 3 contracts
Samples: Credit Agreement (Merge Healthcare Inc), Credit Agreement (Merge Healthcare Inc), Credit Agreement (Merge Healthcare Inc)
Mergers and Consolidations. The Borrower shall will not, nor shall it cause or and will not permit any of the Guarantors Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower and the Restricted Subsidiaries taken as a whole, or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing:
(1i) any Person may merge with or consolidate into the Borrower in a transaction in which (x) such Borrower is the surviving corporation or (y) the continuing or surviving entity shall have assumed all of the obligations of such Borrower hereunder pursuant to an instrument in form and substance satisfactory to the Administrative Agent and shall have delivered such proof of corporate action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by the Borrower pursuant to Section 4.01 upon the Effective Date or as the Administrative Agent shall have requested and the net worth (determined on a consolidated basis in accordance with GAAP) of the continuing or surviving entity immediately after giving effect thereto shall be greater than or equal to the net worth (so determined) of such Borrower immediately prior to giving effect thereto;
(ii) any Guarantor Person (other than the Borrower) may merge with or into any Subsidiary of the Borrower in a transaction in which the Borrower or, in a merger or consolidation to which the Borrower is not party, such Guarantor is the surviving corporation, (2) the Borrower or any Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all the assets of the Borrower and the Restricted Subsidiaries taken as a whole to, any Person, provided that the resulting, surviving or transferee Person entity is a corporation, limited liability company or partnership organized and validly existing under the laws of the United States of America or any jurisdiction thereof and expressly assumes all of the obligations Subsidiary of the Borrower, provided that, if any such merger shall be between a Subsidiary Guarantor and a Non-Guarantor Subsidiary, the survivor shall be or of such become a Subsidiary Guarantor, as applicable, under the Loan Documents, ;
(3iii) any Guarantor may dispose Subsidiary of all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor and (4) any Guarantor may liquidate (other than in connection with a merger or a consolidation which shall be governed by the other clauses of this Section 6.05) and distribute its assets ratably to its shareholders dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; and
(iv) any Subsidiary (other than the Borrower) may merge into any other Person in order to effect a Disposition permitted by this Agreement.
Appears in 3 contracts
Samples: Credit Agreement (SPRINT Corp), Amendment Agreement (Sprint Nextel Corp), Credit Agreement (Sprint Nextel Corp)
Mergers and Consolidations. The Borrower shall not, nor shall it cause or permit any of the Guarantors to, No Company will merge into or consolidate with any Person other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of than:
(in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower and the Restricted Subsidiaries taken as a whole, or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (1a) any Person may merge or consolidate into the Borrower or any Guarantor in a transaction in which the Borrower or, in a merger or consolidation to which where the Borrower (or another Company, if the Borrower is not party, such Guarantor a party thereto) is the surviving corporation, ;
(2) the Borrower or any Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all the assets of the Borrower and the Restricted Subsidiaries taken as a whole to, any Person, provided that the resulting, surviving or transferee Person is a corporation, limited liability company or partnership organized and validly existing under the laws of the United States of America or any jurisdiction thereof and expressly assumes all of the obligations of the Borrower, or of such Guarantor, as applicable, under the Loan Documents, (3b) any Guarantor may dispose merger of all of its assets any Subsidiary into another Company;
(upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor and (4c) any Guarantor may liquidate merger of a Subsidiary into another Person (other than in connection with the Borrower) if after such merger the surviving entity becomes a Subsidiary;
(d) any sale of assets permitted by Section 6.7 that is structured as a merger or consolidation;
(e) any Subsidiary that is not a consolidation which shall be governed by the other clauses of this Section 6.05) and distribute its assets ratably to its shareholders Guarantor Significant Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; and
(f) any Subsidiary may merge into any other Person to the extent the transaction constitutes an Investment permitted by Section 6.5; and
(g) any Subsidiary or any other person may be merged, amalgamated or consolidated with the Borrower or all or substantially all of the assets of the Borrower and its Subsidiaries taken as a whole may be Disposed of to any person, if the surviving person (or the person to whom all or substantially all of the assets of the Borrower and its Subsidiaries are disposed) (such other person, the “Successor Borrower”), (i) the Successor Borrower shall be an entity eligible to borrow from CoBank before and after giving effect to such merger, amalgamation or consolidation, (ii) the Successor Borrower shall be in the same, substantially similar or complimentary lines of business as the Companies after giving effect to such merger, amalgamation or consolidation, (iii) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, (iv) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Papers pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (v) the Successor Borrower shall have delivered to the Administrative Agent (A) a certificate of a Responsible Officer stating that such merger, amalgamation or consolidation does not violate this Agreement or any other Loan Paper and that the Successor Borrower is in compliance with Section 6.14 on a pro forma basis after giving effect to such merger, amalgamation or consolidation and (B) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Loan Paper; provided, that in any such case, immediately after such merger or consolidation, there shall not exist any Default or Event of Default.
Appears in 2 contracts
Samples: Credit Agreement (Qwest Corp), Credit Agreement (Lumen Technologies, Inc.)
Mergers and Consolidations. The Borrower shall Company will not, nor shall it cause or and will not permit any of the Guarantors Restricted Subsidiary to, merge into consolidate with or consolidate be a party to a merger with any other Person or, except as otherwise permitted by Section 10.5, convey, transfer or lease substantially all of its assets in a single transaction or series of transactions to any Person; provided, however, that the Company or any Restricted Subsidiary may consolidate or merge with, or permit convey, transfer or lease substantially all of its assets to, any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of so long as (in one transaction or in a series of transactionsa) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower and the Restricted Subsidiaries taken as a whole, or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (1) any Person may merge or consolidate into the Borrower or any Guarantor in a transaction in which the Borrower or, in a merger or consolidation to which the Borrower is not party, such Guarantor is the surviving corporation, entity (2if not the Company or such Restricted Subsidiary) or the Borrower transferee or any Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all the assets of the Borrower and the Restricted Subsidiaries taken as a whole to, any Person, provided that the resulting, surviving or transferee Person lessee is a corporationSolvent partnership, limited liability company or partnership corporation organized and validly existing under the laws of the United States of America or any jurisdiction thereof and State thereof, (b)(i) in the case of the Company, if the Company is not the surviving entity, or it shall convey, transfer or lease its assets to another Person, the surviving entity, transferee or lessee expressly assumes in writing the Company’s obligations under the Notes and this Agreement and each Subsidiary Guarantor shall affirm in writing its respective obligations under the Subsidiary Guaranty Agreement, and (ii) in the case of a Restricted Subsidiary, if such Restricted Subsidiary is not the surviving entity, or it shall convey, transfer or lease its assets to another Person, the surviving entity, transferee or lessee shall be, or upon consummation of such transaction, become, a Restricted Subsidiary with respect to which the Company shall have at least the same degree of ownership and control as it had with respect to such disappearing Restricted Subsidiary and, in the case of a Restricted Subsidiary which is a Subsidiary Guarantor, such surviving entity, transferee or lessee shall expressly assume, in writing, the obligations of such disappearing Subsidiary Guarantor in respect of its Subsidiary Guaranty Agreement, and (iii) in the case of either clause (i) or (ii) above, the Company shall have caused to be delivered to each holder of Notes an opinion of independent counsel satisfactory to the Required Holders to the effect that all agreements or instruments effecting such assumptions are enforceable in accordance with their terms and comply with the terms thereof, and (c) at the time of such consolidation, merger, conveyance, transfer or lease and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing. Upon consummation of any such conveyance or transfer (other than by way of lease) of substantially all of the obligations assets of the BorrowerCompany or any successor Person, or of such Guarantor, as applicable, the transferor shall be released from its obligations hereunder and under the Loan DocumentsNotes, (3) any Guarantor may dispose but no such release shall have the effect of all of its assets (upon voluntary liquidation or otherwise) to releasing the Borrower Company or any other Guarantor and (4) any Guarantor may liquidate (other than Person that shall have become such in connection with a merger or a consolidation which shall be governed by the other clauses of manner prescribed in this Section 6.05) and distribute 10.4 from its assets ratably to its shareholders if liability hereunder or under the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the LendersNotes.
Appears in 2 contracts
Samples: Note Purchase Agreement (Alliance Resource Partners Lp), Note Purchase Agreement (Alliance Resource Partners Lp)
Mergers and Consolidations. The Borrower shall notWind up, nor shall it cause liquidate or permit dissolve its affairs or enter into any transaction of merger or consolidation (or agree to do any of the Guarantors to, merge into or consolidate with foregoing at any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower and the Restricted Subsidiaries taken as a whole, or liquidate or dissolvetime), except that if at the time thereof following shall be permitted:
(a) the Transactions as contemplated by, and immediately after giving effect thereto no Event in compliance with, the respective Transaction Documents;
(b) dispositions of Default or Default shall have occurred and be continuing assets in compliance with Section 6.06;
(1c) Permitted Acquisitions;
(d) any Person solvent Company may merge or consolidate with or into the a Borrower or any Subsidiary Guarantor (so long as (i) in the event the Administrative Borrower is a transaction party to such merger or consolidation, the Administrative Borrower shall be the surviving person, (ii) in which the event that a Borrower other than the Administrative Borrower is a party to merger or consolidation, such Borrower shall be the surviving person (or, in if two or more Borrowers are a party to the merger or consolidation consolidation, a Borrower shall be the surviving person), and (iii) in any other case, a Subsidiary Guarantor shall be the surviving person and shall remain, directly or indirectly, a Wholly Owned Subsidiary of the Administrative Borrower); provided, that, the Lien on and security interest in such property granted or to which be granted in favor of the Borrower Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.10 or Section 5.11, as applicable;
(e) any Company that is not party, such Guarantor is the surviving corporation, (2) the Borrower or any Guarantor a Loan Party may merge into any other Company that is not a Loan Party; and
(f) any Restricted Subsidiary that is not a Borrower may dissolve, liquidate or consolidate withwind up its affairs at any time if such dissolution, liquidation or sell, transfer, lease or otherwise dispose of all or substantially all winding up could not reasonably be expected to be disadvantageous to the assets of the Borrower Agent and the Restricted Subsidiaries taken as a whole to, Lenders in any Person, provided that material respect. To the resulting, surviving or transferee Person is a corporation, limited liability company or partnership organized and validly existing extent the requisite Lenders under Section 11.02(b) waive the laws of the United States of America or any jurisdiction thereof and expressly assumes all of the obligations of the Borrower, or of such Guarantor, as applicable, under the Loan Documents, (3) any Guarantor may dispose of all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor and (4) any Guarantor may liquidate (other than in connection with a merger or a consolidation which shall be governed by the other clauses provisions of this Section 6.05 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.05) , such Collateral (unless sold to a Company or any Affiliate thereof), but not the proceeds thereof, shall be sold free and distribute its assets ratably to its shareholders if the Borrower determines in good faith that such liquidation or dissolution is in the best interests clear of the Liens created by the Security Documents, and, so long as the Administrative Borrower and is not materially disadvantageous shall have previously provided to the LendersAgent and the Co-Collateral Agents such certifications or documents as the Agent or the Co-Collateral Agents shall reasonably request in order to demonstrate compliance with this Section 6.05, the Agent or the Co-Collateral Agents shall take all actions it deems appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Layne Christensen Co), Credit Agreement (Layne Christensen Co)
Mergers and Consolidations. The Borrower shall notNot, nor shall it cause or and not permit any of the Guarantors Restricted Subsidiary to, consolidate with or merge into or consolidate with any other Personcorporation or convey, transfer or lease substantially all of its assets in a single transaction or series of transactions to any Person (except that a Restricted Subsidiary of the Borrower may (x) consolidate with or merge with, or permit convey, transfer or lease substantially all of its assets in a single transaction or series of transactions to, the Borrower or another Restricted Subsidiary of the Borrower or any other Person that will, after giving effect to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose the consummation of (in one such transaction or in a series of transactions, constitute a Restricted Subsidiary and (y) convey, transfer or lease all or substantially all of its assets in compliance with the assets (whether now owned or hereafter acquired) provisions of Section 7.05), provided that the Borrower and the Restricted Subsidiaries taken as a whole, or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing foregoing restriction does not apply to (1) any Person may merge consolidation or consolidate into the Borrower merger in order to consummate an Acquisition not prohibited by Section 7.06 or any Guarantor in a transaction in which the Borrower or, in a merger other Investment not prohibited by Section 7.11 or consolidation to which the Borrower is not party, such Guarantor is the surviving corporation, (2) the consolidation or merger of the Borrower or any Guarantor may merge into or consolidate with, or sellthe conveyance, transfer, transfer or lease or otherwise dispose of all or substantially all of the assets of the Borrower and the Restricted Subsidiaries taken as in a whole single transaction or series of transactions to, any Person, provided in each case, so long as (i) the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease substantially all of the resultingassets of the Borrower, surviving or transferee Person is as the case may be (the “Successor Corporation”), shall be a solvent corporation, limited liability company or partnership other limited liability entity organized and validly existing under the laws of the United States of America America, any State thereof or any jurisdiction thereof and expressly assumes the District of Columbia, (ii) the Successor Corporation (if not the Borrower) agrees in writing to assume all of the obligations of the BorrowerBorrower under this Agreement and each other Loan Document to which the Borrower is a party, and (iii) immediately after giving effect to such transaction no Default or Event of Default would exist. No such Guarantorconveyance, as applicable, under the Loan Documents, (3) any Guarantor may dispose transfer or lease of substantially all of its the assets (upon voluntary liquidation or otherwise) to of the Borrower shall have the effect of releasing the Borrower or any other Guarantor and (4) any Guarantor may liquidate (other than in connection with a merger Successor Corporation from its liability under this Agreement or a consolidation which shall be governed by the other clauses of this Section 6.05) and distribute its assets ratably to its shareholders if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the LendersLoan Documents.
Appears in 1 contract
Samples: Credit Agreement (Aar Corp)
Mergers and Consolidations. The Borrower shall notNo Issuer will, nor shall will it cause or permit any of the Guarantors Subsidiary Guarantor to, consolidate with or merge into or consolidate with any other Person, Person or permit any other Person to merge into or consolidate with it, or sellconvey, transfer, sell or lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the of its assets (whether now owned in a single transaction or hereafter acquired) series of the Borrower and the Restricted Subsidiaries taken as a whole, or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (1) transactions to any Person may merge or consolidate into the Borrower or any Guarantor in a transaction in which the Borrower or(including, in each case, pursuant to a Delaware LLC Division) unless:
(a) the successor formed by such consolidation or the survivor of such merger or consolidation to which the Borrower is not party, such Guarantor is the surviving corporation, (2) the Borrower or any Guarantor may merge into or consolidate with, or sellPerson that acquires by conveyance, transfer, sale or lease or otherwise dispose of all or substantially all of the assets of such Issuer or such Subsidiary Guarantor, as the Borrower and case may be (the Restricted Subsidiaries taken as “Successor Corporation”), shall be a whole to, any Person, provided that the resulting, surviving solvent corporation or transferee Person is a corporation, limited liability company or partnership organized and validly existing under the laws of the United States of America or any jurisdiction State thereof (including the District of Columbia), and expressly assumes (i) except for any such transaction involving only Issuers and/or only Subsidiary Guarantors or any such transaction where an Issuer and/or Subsidiary Guarantor is the Successor Corporation of any such transaction, such corporation or limited liability company shall have executed and delivered to each holder of any Notes its assumption of the due and punctual performance and observance of each covenant and condition of such Obligor under the applicable Financing Documents in form and substance satisfactory to the Required Holders and (ii) shall have caused to be delivered to each holder of any Notes an opinion reasonably satisfactory to the Required Holders of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their respective terms (except as such enforceability may be limited by (x) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (y) general principles of equity) and comply with the terms hereof; and
(b) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing and the Company shall have delivered to each holder of the Notes computations evidencing, on a pro forma basis, as if such transaction had occurred the day before the last day of the most recently ended fiscal quarter, compliance (on consolidated basis) with Section 10.3, Section 10.4, Section 10.5, Section 10.6, Section 10.7 and Section 10.9. No such conveyance, transfer, sale or lease of all or substantially all of the obligations assets of any Obligor shall have the effect of releasing such Obligor or any Successor Corporation that shall theretofore have become such in the manner prescribed in this Section 10.2 from its liability under (x) this Agreement or the Notes (in the case of the BorrowerIssuers) or (y) the Subsidiary Guarantee (in the case of any Subsidiary Guarantor), unless, in the case of the conveyance, transfer or lease of such substantially all of the assets of a Subsidiary Guarantor, as applicable, under the Loan Documents, (3such Subsidiary Guarantor is released from its Subsidiary Guarantee in accordance with Section 9.6(c) any Guarantor may dispose of all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor and (4) any Guarantor may liquidate (other than in connection with a merger or a consolidation which shall be governed by the other clauses of this Section 6.05) and distribute its assets ratably to its shareholders if the Borrower determines in good faith that immediately following such liquidation conveyance, transfer, sale or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenderslease.
Appears in 1 contract
Mergers and Consolidations. The Borrower shall notDirectly or indirectly merge into or consolidate with any Person, nor shall it cause except that:
(a) any Material Subsidiary may merge into or permit consolidate with any of other Material Subsidiary (including any Subsidiary that becomes a Material Subsidiary in connection with such merger or consolidation); and
(b) any Material Subsidiary may merge into or consolidate with the Guarantors toGuarantor, and the Guarantor or any Material Subsidiary may merge into or consolidate with any other Person; PROVIDED that in each case, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower and the Restricted Subsidiaries taken as a whole, or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto thereto, (i) no Event of Default or Default shall have occurred occur and be continuing continuing, (1ii) in the case of any Person may merge or consolidate into the Borrower or any Guarantor in a transaction in which the Borrower or, in a merger or consolidation to which the Borrower Guarantor is not a party, either (A) a Subsidiary of the Guarantor shall be the continuing or surviving Person or (B) such merger or consolidation will not impair the ability of the Guarantor to perform its obligations under this Guaranty, and (iii) in the case of any such merger or consolidation to which the Guarantor is a party, either (A) the Guarantor is the continuing or surviving corporation, Person or (2B) if the Guarantor is not the continuing or surviving Person: (I) the Borrower continuing or any Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all the assets of the Borrower and the Restricted Subsidiaries taken as a whole to, any Person, provided that the resulting, surviving or transferee Person is shall be a corporation, partnership or limited liability company or partnership organized that is duly formed and validly existing under the laws of the United States States, a State thereof or the District of America Columbia, (II) the continuing or any jurisdiction thereof surviving Person shall assume, by execution and expressly assumes all delivery of instruments reasonably satisfactory to the Lessor and Assignee, the obligations of the Borrower, Guarantor under this Guaranty and the CEI Note and shall become successor to the Guarantor for purposes of this Guaranty and the CEI Note and (III) the continuing or surviving Person shall deliver to the Lessor and Assignee an opinion of counsel of such Guarantorcontinuing or surviving Person, as applicable, under the Loan Documents, (3) any Guarantor may dispose of all of its assets (upon voluntary liquidation or otherwise) in form and substance reasonably satisfactory to the Borrower or any other Guarantor Lessor and (4) any Guarantor may liquidate (other than in connection Assignee, with a merger or a consolidation which shall be governed by respect to the other clauses enforceability of the assumption of this Section 6.05) Guaranty and distribute its assets ratably to its shareholders if the Borrower determines in good faith that CEI Note by such liquidation continuing or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenderssurviving Person.
Appears in 1 contract
Samples: Guaranty (Consolidated Edison Inc)
Mergers and Consolidations. The Borrower shall notWind up, nor shall it cause liquidate or permit any of the Guarantors to, merge into or consolidate with any other Persondissolve its affairs, or permit enter into any transaction of merger or consolidation, except that the following shall be permitted:
(a) dispositions of assets in compliance with Section 6.06 (other Person to merge into or consolidate with itthan Sections 6.06(d), or sell, transfer, lease or otherwise dispose of (e) and (f));
(b) Permitted Acquisitions described in one transaction or in a series of transactionsclauses (a) all or substantially all the assets through (whether now owned or hereafter acquiredc) of the Borrower and the Restricted Subsidiaries taken as a whole, or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto no Event definition of Default or Default shall have occurred and be continuing Permitted Acquisition;
(1c) any Person Solvent Subsidiary of the Borrower (other than the Borrower) may merge or consolidate with or into the Borrower or any a Subsidiary Guarantor (so long as (i) in a transaction in which the Borrower or, in a merger or consolidation to which event the Borrower is not partya party to such merger or consolidation, such Guarantor is the Borrower shall be the surviving corporationperson, and (2ii) in any other case, a Subsidiary Guarantor shall be the surviving person and shall remain, directly or indirectly, a Wholly Owned Subsidiary of the Borrower); provided, that the Lien on and security interest in such property granted or to be granted in favor of the Collateral Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.10 or Section 5.11, as applicable;
(d) any Subsidiary of the Borrower or any Guarantor that is not a Loan Party may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all the assets any other Subsidiary of the Borrower that is not a Loan Party;
(e) any Subsidiary of the Borrower that is not a Loan Party may dissolve, liquidate or wind up its affairs at any time if such dissolution, liquidation or winding up would not reasonably be expected to be disadvantageous to the Agents and the Restricted Subsidiaries taken Lenders in any material respect; and
(f) each of Baltic Trading Limited, Genco Investments LLC and Genco Holdings Limited (each a “Holding Company”) may dissolve, liquidate and wind up so long as a whole toany Equity Interests such Holding Company owns in any Subsidiary Guarantor are transferred or distributed to Borrower or another Subsidiary Guarantor, any Personand Borrower or such other Subsidiary Guarantor which is, provided that in each case, the resulting, surviving or transferee Person is a corporation, limited liability company or partnership organized of such Equity Interests takes all actions reasonably requested by the Administrative Agent and validly existing under Collateral Agent to maintain the laws Lien in favor of the United States of America or any jurisdiction thereof and expressly assumes all Collateral Agent for the benefit of the obligations of Secured Parties in such Equity Interests in a manner consistent with the Borrower, or of such Guarantor, as applicable, Pledge Agreement and Section 5.11. To the extent the requisite Lenders under Section 11.02(b) waive the Loan Documents, (3) any Guarantor may dispose of all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Guarantor and (4) any Guarantor may liquidate (other than in connection with a merger or a consolidation which shall be governed by the other clauses provisions of this Section 6.05 with respect to the sale of any Collateral not otherwise permitted under this Agreement, or any Collateral is sold as permitted by this Section 6.05) , such Collateral (unless sold to another Loan Party), but not the proceeds thereof, shall be sold free and distribute its assets ratably to its shareholders if clear of the Liens created by the Security Documents, and, so long as the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous shall have previously provided to the LendersCollateral Agent and the Administrative Agent such certifications or documents as the Collateral Agent and/or the Administrative Agent shall reasonably request in order to demonstrate compliance with this Section 6.05, the Collateral Agent shall take all actions it deems appropriate in order to effect the foregoing.
Appears in 1 contract
Mergers and Consolidations. The Borrower shall Company will not, nor shall it cause or and will not permit any of the Guarantors Restricted Subsidiary to, merge into consolidate with or consolidate be a party to a merger with any other Person or convey, transfer or lease substantially all of its assets in a single transaction or series of transactions to any Person; provided, however, that the Company or any Restricted Subsidiary may consolidate or merge with, or permit convey, transfer or lease substantially all of its assets to, any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of so long as (in one transaction or in a series of transactionsi) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower and the Restricted Subsidiaries taken as a whole, or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (1) any Person may merge or consolidate into the Borrower or any Guarantor in a transaction in which the Borrower or, in a merger or consolidation to which the Borrower is not party, such Guarantor is the surviving corporation, entity (2if not the Company or such Restricted Subsidiary) or the Borrower transferee or any Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all the assets of the Borrower and the Restricted Subsidiaries taken as a whole to, any Person, provided that the resulting, surviving or transferee Person lessee is a corporationsolvent partnership, limited liability company or partnership corporation organized and validly existing under the laws of the United States of America or any jurisdiction thereof and State thereof, (ii) (a) in the case of the Company, if the 29 35 Alliance Resource GP, LLC Note Purchase Agreement Company is not the surviving entity, or it shall convey, transfer or lease its assets to another Person, the surviving entity, transferee or lessee expressly assumes in writing the Company's obligations under the Notes and this Agreement, and (b) in the case of a Restricted Subsidiary, if such Restricted Subsidiary is not the surviving entity, or it shall convey, transfer or lease its assets to another Person, the surviving entity, transferee or lessee shall be, or upon consummation of such transaction, become, a Restricted Subsidiary with respect to which the Company shall have at least the same degree of ownership and control as it had with respect to such disappearing Restricted Subsidiary and, in the case of a Restricted Subsidiary which is a Subsidiary Guarantor, such surviving entity, transferee or lessee shall expressly assume, in writing, the obligations of such disappearing Subsidiary Guarantor in respect of its Subsidiary Guarantee Agreement, and (c) in the case of either clause (a) or (b) above, the Company shall have caused to be delivered to each holder of Notes an opinion of independent counsel satisfactory to such holders to the effect that all agreements or instruments effecting such assumptions are enforceable in accordance with their terms and comply with the terms thereof, (iii) at the time of such consolidation, merger, conveyance, transfer or lease and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and (iv) the Company or the surviving entity or transferee of a transaction involving the Company would be permitted by the provisions of Section 10.1 (a) to incur at least $1 of additional Debt owing to a Person other than a Restricted Subsidiary. Upon consummation of any such conveyance or transfer (other than by way of lease) of substantially all of the obligations assets of the BorrowerCompany or any successor Person, or of such Guarantor, as applicable, the transferor shall be released from its obligations hereunder and under the Loan DocumentsNotes, (3) any Guarantor may dispose but no such lease shall have the effect of all of its assets (upon voluntary liquidation or otherwise) to releasing the Borrower Company or any other Guarantor and (4) any Guarantor may liquidate (other than Person that shall have become such in connection with a merger or a consolidation which shall be governed by the other clauses of manner prescribed in this Section 6.05) and distribute 10.6 from its assets ratably to its shareholders if liability hereunder or under the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the LendersNotes.
Appears in 1 contract
Samples: Note Purchase Agreement (Alliance Resource Partners Lp)
Mergers and Consolidations. (a) The Borrower Guarantor shall not, nor shall it cause not consolidate with or permit any of the Guarantors to, merge into or consolidate with any other Person, or permit any other Person or convey, transfer or lease its properties and assets substantially as an entirety to merge any Person, unless:
(i) the Person formed by such consolidation or into which the Guarantor is merged or consolidate with itthe Person which acquires by conveyance or transfer, or sellwhich leases, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower properties and the Restricted Subsidiaries taken as a whole, or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (1) any Person may merge or consolidate into the Borrower or any Guarantor in a transaction in which the Borrower or, in a merger or consolidation to which the Borrower is not party, such Guarantor is the surviving corporation, (2) the Borrower or any Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all the assets of the Borrower and the Restricted Subsidiaries taken Guarantor, substantially as an entirety shall be a whole to, any Person, provided that the resulting, surviving or transferee Person is a corporation, limited liability company or partnership corporation organized and validly existing under the laws of the United States States, any State thereof or the District of America or any jurisdiction thereof Columbia, and shall expressly assumes all assume, by execution and delivery of instruments reasonably satisfactory to the Lessor and the Collateral Trustee, the obligations of the BorrowerGuarantor under this Guaranty and the performance of every covenant of this Guaranty on the part of the Guarantor to be performed or observed;
(ii) immediately after giving effect to such transaction, no Event of Default and no Potential Default shall have occurred and be continuing; and
(iii) the Guarantor shall have delivered to the Lessor and the Collateral Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance or other transfer or lease and such assumption instrument delivered in connection therewith complies with this Section 3.2.1 and that all conditions precedent herein provided for and relating to such transactions have been complied with.
(b) Upon any consolidation by the Guarantor with or merger by the Guarantor into any other Person or any conveyance or other transfer or lease of the properties and assets of the Guarantor substantially as an entirety in accordance with Section 3.2.1(a) above, the successor Person formed by such consolidation or into which the Guarantor is merged or the Person to which such conveyance, or other transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Guarantor under this Guaranty with the same effect as if such successor Person had been named as the Guarantor herein, and thereafter, except in the case of such Guarantora lease, as applicable, the predecessor Person shall be relieved of and released from all obligations and covenants under this Guaranty and the Loan Documents, Obligations outstanding hereunder (3) any unless the Guarantor may dispose of all of its assets (upon voluntary liquidation or otherwise) shall have delivered to the Borrower or any other Lessor and the Collateral Trustee an instrument waiving such relief and release), and the Lessor and the Collateral Trustee shall acknowledge in writing that the Guarantor has been so relieved and released.
(4c) any Guarantor may liquidate (other than For purposes of clarification and not in connection with a merger or a consolidation which shall be governed by limitation of the other clauses provisions of this Section 6.053.2.1, nothing in this Guaranty shall be deemed to prevent or restrict:
(i) and distribute its assets ratably to its shareholders if any consolidation or merger after the Borrower determines in good faith that such liquidation consummation of which the Guarantor would be the surviving or dissolution is in the best interests resulting corporation, or
(ii) any conveyance or other transfer, or lease of any part of the Borrower and is properties of the Guarantor which does not materially disadvantageous to constitute the Lendersentirety, or substantially the entirety, thereof, or
(iii) the approval by the Guarantor of, or the consent by the Guarantor to, any consolidation or merger of any direct or indirect subsidiary or affiliate of the Guarantor, or any conveyance, transfer or lease by any such subsidiary or affiliate of any of its assets.
Appears in 1 contract
Mergers and Consolidations. The Borrower shall not, nor shall it cause will not consolidate with or permit any of the Guarantors to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with itconvey, transfer or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets as an entirety to any Person unless:
(i) the Person formed by such consolidation or into which the Borrower is merged or the Person which acquires by conveyance, transfer or lease substantially all of the assets (whether now owned or hereafter acquired) of the Borrower as an entirety shall be a Certificated Air Carrier;
(ii) the Person formed by such consolidation or into which the Borrower is merged or the Person which acquires by conveyance, transfer or lease substantially all of the assets of the Borrower as an entirety shall execute and deliver to the Restricted Subsidiaries taken as Security Trustee a wholeduly authorized, valid, binding and enforceable agreement in form and substance reasonably satisfactory to the Security Trustee containing an assumption by such Person of the due and punctual performance and observance of each covenant and condition of the Transaction Documents to be performed or liquidate or dissolve, except that if at observed by the time thereof and Borrower;
(iii) immediately after giving effect thereto to such transaction, no Event of Default or Default shall have occurred and be continuing continuing;
(1iv) any Person may merge or consolidate into all filings shall have been made as shall be necessary to preserve the perfection of (A) the Lien of the Mortgage on the Pledged Spare Parts on a first priority and perfected basis (subject to Permitted Liens) and (B) the Lien of the Subordinated Mortgage on Pledged Spare Parts on a second priority and perfected basis (subject to Permitted Liens); and
(v) promptly after the consummation of such transaction, the Borrower shall deliver to the Security Trustee a certificate of the Secretary or an Assistant Secretary of Borrower certifying as to Borrower's compliance with the conditions of this Section 4.1(c) and an opinion of Borrower's Legal Department as to Borrower's compliance with Sections 4.1(c)(i), 4.l(c)(ii) and 4.1(c)(iv). Upon any consolidation or merger, or any Guarantor in a transaction in which the Borrower orconveyance, in a merger transfer or consolidation to which the Borrower is not party, such Guarantor is the surviving corporation, (2) the Borrower or any Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all of the assets of the Borrower as an entirety in accordance with this Section 4.1(c), the Person formed by such consolidation or into which the Borrower 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, the Borrower under this Agreement and the Restricted Subsidiaries taken other Transaction Documents with the same effect as a whole toif such Person had been named as the Borrower herein. No such conveyance, any Person, provided that the resulting, surviving transfer or transferee Person is a corporation, limited liability company lease of all or partnership organized and validly existing under the laws of the United States of America or any jurisdiction thereof and expressly assumes substantially all of the obligations assets of the Borrower, or Borrower as an entirety shall have the effect of such Guarantor, as applicable, under the Loan Documents, (3) any Guarantor may dispose of all of its assets (upon voluntary liquidation or otherwise) to releasing the Borrower or any other Guarantor and (4) any Guarantor may liquidate (other than in connection with a merger or a consolidation Person which shall be governed by theretofore have become such in the other clauses of manner prescribed in this Section 6.054.1(c) and distribute its assets ratably from the Borrower's liability in respect of any Transaction Document to its shareholders if the Borrower determines in good faith that such liquidation or dissolution which it is in the best interests of the Borrower and is not materially disadvantageous to the Lendersa party.
Appears in 1 contract
Mergers and Consolidations. The Borrower shall Company will not, nor shall it cause or and will not permit any of the Guarantors Restricted Subsidiary to, merge into consolidate with or consolidate be a party to a merger with any other Person or convey, transfer or lease substantially all of its assets in a single transaction or series of transactions to any Person; provided, however, that the Company or any Restricted Subsidiary may consolidate or merge with, or permit convey, transfer or lease substantially all of its assets to, any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of so long as (in one transaction or in a series of transactionsi) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower and the Restricted Subsidiaries taken as a whole, or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (1) any Person may merge or consolidate into the Borrower or any Guarantor in a transaction in which the Borrower or, in a merger or consolidation to which the Borrower is not party, such Guarantor is the surviving corporationAlliance Resource GP, LLC Note Purchase Agreement entity (2if not the Company or such Restricted Subsidiary) or the Borrower transferee or any Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all the assets of the Borrower and the Restricted Subsidiaries taken as a whole to, any Person, provided that the resulting, surviving or transferee Person lessee is a corporationsolvent partnership, limited liability company or partnership corporation organized and validly existing under the laws of the United States of America or any jurisdiction thereof and State thereof, (ii) (a) in the case of the Company, if the Company is not the surviving entity, or it shall convey, transfer or lease its assets to another Person, the surviving entity, transferee or lessee expressly assumes in writing the Company's obligations under the Notes and this Agreement, and (b) in the case of a Restricted Subsidiary, if such Restricted Subsidiary is not the surviving entity, or it shall convey, transfer or lease its assets to another Person, the surviving entity, transferee or lessee shall be, or upon consummation of such transaction, become, a Restricted Subsidiary with respect to which the Company shall have at least the same degree of ownership and control as it had with respect to such disappearing Restricted Subsidiary and, in the case of a Restricted Subsidiary which is a Subsidiary Guarantor, such surviving entity, transferee or lessee shall expressly assume, in writing, the obligations of such disappearing Subsidiary Guarantor in respect of its Subsidiary Guaranty Agreement, and (c) in the case of either clause (a) or (b) above, the Company shall have caused to be delivered to each holder of Notes an opinion of independent counsel satisfactory to such holders to the effect that all agreements or instruments effecting such assumptions are enforceable in accordance with their terms and comply with the terms thereof, (iii) at the time of such consolidation, merger, conveyance, transfer or lease and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and (iv) the Company or the surviving entity or transferee of a transaction involving the Company would be permitted by the provisions of Section 10.1 (a) to incur at least $1 of additional Debt owing to a Person other than a Restricted Subsidiary. Upon consummation of any such conveyance or transfer (other than by way of lease) of substantially all of the obligations assets of the BorrowerCompany or any successor Person, or of such Guarantor, as applicable, the transferor shall be released from its obligations hereunder and under the Loan DocumentsNotes, (3) any Guarantor may dispose but no such lease shall have the effect of all of its assets (upon voluntary liquidation or otherwise) to releasing the Borrower Company or any other Guarantor and (4) any Guarantor may liquidate (other than Person that shall have become such in connection with a merger or a consolidation which shall be governed by the other clauses of manner prescribed in this Section 6.05) and distribute 10.6 from its assets ratably to its shareholders if liability hereunder or under the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the LendersNotes.
Appears in 1 contract
Samples: Note Purchase Agreement (Alliance Resource Partners Lp)
Mergers and Consolidations. The Borrower shall not, nor shall it cause will not consolidate with or permit any of the Guarantors to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with itconvey, transfer or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets as an entirety to any Person unless:
(i) the Person formed by such consolidation or into which the Borrower is merged or the Person which acquires by conveyance, transfer or lease substantially all of the assets (whether now owned or hereafter acquired) of the Borrower as an entirety shall be a Certificated Air Carrier;
(ii) the Person formed by such consolidation or into which the Borrower is merged or the Person which acquires by conveyance, transfer or lease substantially all of the assets of the Borrower as an entirety shall execute and deliver to the Restricted Subsidiaries taken as Security Trustee a wholeduly authorized, valid, binding and enforceable agreement in form and substance reasonably satisfactory to the Security Trustee containing an assumption by such Person of the due and punctual performance and observance of each covenant and condition of the Transaction Documents to be performed or liquidate or dissolve, except that if at observed by the time thereof and Borrower;
(iii) immediately after giving effect thereto to such transaction, no Event of Default or Default shall have occurred and be continuing continuing;
(1iv) any Person may merge or consolidate into all filings shall have been made as shall be necessary to preserve the perfection of (A) the Lien of the Mortgage on each Engine on a first priority and perfected basis (subject to Permitted Liens) and (B) the Lien of the Subordinated Mortgage on each Engine on a second priority and perfected basis (subject to Permitted Liens); and
(v) promptly after the consummation of such transaction, the Borrower shall deliver to the Security Trustee a certificate of the Secretary or an Assistant Secretary of Borrower certifying as to Borrower's compliance with the conditions of this Section 4.1(c) and an opinion of Borrower's Legal Department as to Borrower's compliance with Sections 4.1(c)(i), 4.l(c)(ii) and 4.1(c)(iv). Upon any consolidation or merger, or any Guarantor in a transaction in which the Borrower orconveyance, in a merger transfer or consolidation to which the Borrower is not party, such Guarantor is the surviving corporation, (2) the Borrower or any Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all of the assets of the Borrower as an entirety in accordance with this Section 4.1(c), the Person formed by such consolidation or into which the Borrower 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, the Borrower under this Agreement and the Restricted Subsidiaries taken other Transaction Documents with the same effect as a whole toif such Person had been named as the Borrower herein. No such conveyance, any Person, provided that the resulting, surviving transfer or transferee Person is a corporation, limited liability company lease of all or partnership organized and validly existing under the laws of the United States of America or any jurisdiction thereof and expressly assumes substantially all of the obligations assets of the Borrower, or Borrower as an entirety shall have the effect of such Guarantor, as applicable, under the Loan Documents, (3) any Guarantor may dispose of all of its assets (upon voluntary liquidation or otherwise) to releasing the Borrower or any other Guarantor and (4) any Guarantor may liquidate (other than in connection with a merger or a consolidation Person which shall be governed by theretofore have become such in the other clauses of manner prescribed in this Section 6.054.1(c) and distribute its assets ratably from the Borrower's liability in respect of any Transaction Document to its shareholders if the Borrower determines in good faith that such liquidation or dissolution which it is in the best interests of the Borrower and is not materially disadvantageous to the Lendersa party.
Appears in 1 contract
Mergers and Consolidations. The Borrower shall not, nor shall it cause Disposition of Assets. Merge with or permit any of the Guarantors to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with itinto, or sell, transferassign, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all the of its assets (whether now owned or hereafter acquired) of the Borrower and the Restricted Subsidiaries taken as a whole, to any Person or liquidate or dissolvepermit any Principal Subsidiary to do so, except that if at the time thereof (i) any of its Principal Subsidiaries may merge with or into or consolidate with or transfer assets to any other Principal Subsidiary of such Borrower, (ii) any of its Principal Subsidiaries may merge with or into or consolidate with or transfer assets to such Borrower and (iii) such Borrower or any of its Principal Subsidiaries may merge with or into or consolidate with or transfer assets to any other Person; provided that, in each case, immediately after thereafter in giving effect thereto thereto, no Event of Default or Unmatured Event of Default with respect to such Borrower shall have occurred and be continuing and (1A) in the case of any Person may merge such merger, consolidation or consolidate into the Borrower or any Guarantor in a transaction in which the Borrower or, in a merger or consolidation transfer of assets to which the a Borrower is not a party, either (x) such Guarantor is Borrower shall be the surviving corporation, entity or (2y) the Borrower or any Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all the assets of the Borrower surviving entity shall be an Eligible Successor and the Restricted Subsidiaries taken as a whole to, any Person, provided that the resulting, surviving or transferee Person is a corporation, limited liability company or partnership organized and validly existing under the laws of the United States of America or any jurisdiction thereof and expressly assumes shall have assumed all of the obligations of such Borrower under this Agreement and the Borrower, or Notes issued by such Borrower and the Facility LCs issued for the account of such Guarantor, as applicable, under Borrower pursuant to a written instrument in form and substance satisfactory to the Loan DocumentsAdministrative Agent, (3B) subject to clause (A) above, in the case of any Guarantor may dispose such merger, consolidation or transfer of all assets to which any of its assets (upon voluntary liquidation or otherwise) to Principal Subsidiaries is a party, a Principal Subsidiary of such Borrower shall be the Borrower or any other Guarantor surviving entity and (4C) subject to clause (A) above, in the case of any Guarantor may liquidate (other than in connection with such merger, consolidation or transfer of assets to which a merger or Material Subsidiary of Exelon is a consolidation which party, a Material Subsidiary of Exelon shall be governed by the other clauses of this Section 6.05) and distribute its assets ratably to its shareholders if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenderssurviving entity.
Appears in 1 contract
Mergers and Consolidations. The Borrower shall notWind up, nor shall it cause liquidate or permit dissolve its affairs or enter into any transaction of merger or consolidation (or agree to do any of the Guarantors toforegoing at any future time), except that the following shall be permitted:
(a) the Transactions as contemplated by the Transaction Documents;
(b) Asset Sales and Casualty Events in compliance with Section 7.06;
(c) acquisitions in compliance with Section 7.07;
(d) Holdings or any of its Subsidiaries may merge into or consolidate with or into Holdings, the Company or any Subsidiary Guarantor (as long as Holdings is the surviving person in the case of any merger or consolidation involving Holdings, (x) the Company is the surviving person in the case of any other Personmerger or consolidation involving the Company, (y) a domestic Subsidiary Guarantor is the surviving person in the case of any merger or permit consolidation involving a domestic Subsidiary Guarantor and a foreign Subsidiary Guarantor and (z) a Subsidiary Guarantor is the surviving person and is a Wholly Owned Subsidiary of the Company in any other Person case); provided that the Lien on and security interest in such property granted or to merge be granted in favor of the Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 6.10 or Section 6.11, as applicable; provided further that immediately upon the merger or consolidation of the Company with or into or consolidate with it, or sell, transfer, lease or otherwise dispose of Holdings:
(in one transaction or in a series of transactionsi) all or substantially Holdings shall expressly assume all the assets (whether now owned or hereafter acquired) obligations of the Borrower Company under this Agreement and the Restricted Subsidiaries taken as a whole, other Financing Documents pursuant to documents or liquidate or dissolve, except that if at instruments in form reasonably satisfactory to the time thereof and Required Holders;
(ii) immediately after giving effect thereto to such transaction, no Default or Event of Default or Default shall have occurred and be continuing continuing;
(1iii) each Subsidiary Guarantor shall have confirmed that its Guarantee shall apply to Holdings’ assumed obligations under this Agreement and the other Financing Documents;
(iv) Holdings shall have delivered to the Agent a certificate of a Responsible Officer and a written opinion from legal counsel who is acceptable to the Required Holders (it being understood that each of Xxxxxxxx & Xxxxxx, LLP and Xxxxx Xxxx LLP are acceptable to the Required Holders), each stating that such consolidation or merger complies with this Agreement and the other Financing Documents; and
(v) Holdings shall succeed to, and be substituted for, the Company under this Agreement and the other Financing Documents; and
(e) any Person Subsidiary of Holdings (other than the Company) may merge dissolve, liquidate or consolidate into the Borrower or wind up its affairs at any Guarantor in a transaction in which the Borrower or, in a merger or consolidation to which the Borrower is not party, such Guarantor is the surviving corporation, (2) the Borrower or any Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all the assets of the Borrower and the Restricted Subsidiaries taken as a whole to, any Person, time; provided that the resultingsuch dissolution, surviving liquidation or transferee Person is a corporation, limited liability company or partnership organized and validly existing under the laws of the United States of America or any jurisdiction thereof and expressly assumes all of the obligations of the Borrower, or of such Guarantorwinding up, as applicable, under the Loan Documents, (3) any Guarantor may dispose of all of its assets (upon voluntary liquidation or otherwise) could not reasonably be expected to the Borrower or any other Guarantor and (4) any Guarantor may liquidate (other than in connection with have a merger or a consolidation which shall be governed by the other clauses of this Section 6.05) and distribute its assets ratably to its shareholders if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the LendersMaterial Adverse Effect.
Appears in 1 contract
Samples: Purchase Agreement (Digital Domain)
Mergers and Consolidations. The Borrower shall not, nor shall it cause will not consolidate with or permit any of the Guarantors to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with itconvey, transfer or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets as an entirety to any Person unless: ** Confidential Treatment Requested.
(ii) to the assets (whether now owned or hereafter acquired) Collateral Agent a duly authorized, valid, binding and enforceable agreement in form and substance reasonably satisfactory to the Collateral Agent containing **by such Person of the Borrower and **by the Restricted Subsidiaries taken as a whole, or liquidate or dissolve, except that if at the time thereof and Borrower;
(iii) immediately after giving effect thereto to such transaction, no Event of Default or Default shall have occurred and be continuing continuing;
(1iv) any Person may merge or consolidate into all filings shall have been made as shall be necessary to preserve the perfection of (A) the Lien of the Mortgage on the Pledged Spare Parts on a** (subject to Permitted Liens) and (B) the Lien of the Subordinated Parts Mortgage on Pledged Spare Parts on a second priority and perfected basis (subject to Permitted Liens); and
(v) promptly after the consummation of such transaction, the Borrower shall deliver to the Collateral Agent a certificate of the Secretary or an Assistant Secretary of Borrower certifying as to Borrower’s compliance with the conditions of this Section 4.1(c) and an opinion of counsel (which may be issued by Borrower’s Legal Department) as to Borrower’s compliance with Sections 4.1(c)(i), 4.l(c)(ii) and 4.1(c)(iv). Upon any consolidation or merger, or any Guarantor in a transaction in which the Borrower orconveyance, in a merger transfer or consolidation to which the Borrower is not party, such Guarantor is the surviving corporation, (2) the Borrower or any Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all of the assets of the Borrower as an entirety in accordance with this Section 4.1(c), the Person formed by suchconsolidation or into which the Borrower 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, the Borrower under this Agreement and the Restricted Subsidiaries taken other Transaction Documents with the same effect as a whole to, any Person, provided that if such Person had been named as the resulting, surviving or transferee Person is a corporation, limited liability company or partnership organized and validly existing under Borrower herein. No such **as an entirety shall have the laws effect of the United States of America or any jurisdiction thereof and expressly assumes all of the obligations of the Borrower, or of such Guarantor, as applicable, under the Loan Documents, (3) any Guarantor may dispose of all of its assets (upon voluntary liquidation or otherwise) to **the Borrower or any other Guarantor and (4) any Guarantor may liquidate (other than in connection with a merger or a consolidation Person which shall be governed by theretofore have become such in the other clauses of manner prescribed in this Section 6.054.1(c) and distribute its assets ratably from the Borrower’s liability in respect of any Transaction Document to its shareholders if the Borrower determines in good faith that such liquidation or dissolution which it is in the best interests of the Borrower and is not materially disadvantageous to the Lendersa party.
Appears in 1 contract
Samples: Loan Agreement (Us Airways Inc)
Mergers and Consolidations. The Wind up, liquidate or dissolve its affairs or consummate any transaction of merger or consolidation, except that the following shall be permitted:
(a) (i) the Transactions and (ii) the Post-Closing Reorganization;
(b) a merger, consolidation, winding up, liquidation or dissolution in connection with any Disposition permitted pursuant to Section 6.06 (other than clause (g) thereof);
(c) (x) any Restricted Subsidiary may merge or consolidate with or into or dissolve or liquidate into (A) Borrower (provided that Borrower shall notbe the continuing or surviving Person) and (B) any other Restricted Subsidiary (provided that in the case of this clause (B), nor in any such merger, consolidation, dissolution or liquidation involving a Subsidiary Guarantor, a Subsidiary Guarantor shall it cause be the continuing surviving Person in such merger, consolidation, dissolution or permit any of the Guarantors to, liquidation);
(d) Borrower may merge into or consolidate with any other Person; provided that (A) Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, amalgamation or permit consolidation is not Borrower (any other Person to merge into or consolidate with itsuch Person, or sellthe “Successor Borrower”), transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower and the Restricted Subsidiaries taken as a whole, or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (1) any Person may merge the Successor Borrower shall be an entity organized or consolidate into the Borrower or any Guarantor in a transaction in which the Borrower or, in a merger or consolidation to which the Borrower is not party, such Guarantor is the surviving corporation, (2) the Borrower or any Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all the assets of the Borrower and the Restricted Subsidiaries taken as a whole to, any Person, provided that the resulting, surviving or transferee Person is a corporation, limited liability company or partnership organized and validly existing under the laws of the United States States, any State thereof or the District of America or any jurisdiction thereof and Columbia, (2) the Successor Borrower shall expressly assumes assume all of the obligations of Borrower under this Agreement and the Borrower, other Loan Documents to which Borrower is a party pursuant to a supplement hereto or of such Guarantor, as applicable, under thereto in form and substance reasonably satisfactory to the Loan DocumentsAdministrative Agent, (3) any Guarantor may dispose of all of its assets (upon voluntary liquidation each Loan Party other than Borrower, unless it is the other party to such merger, amalgamation or otherwise) consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Borrower Administrative Agent, that its Guarantee of, and (other than with respect to Foreign Parent I or Foreign Parent II) grant of any other Guarantor Liens as security for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) any Guarantor may liquidate Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger, amalgamation or consolidation complies with this Agreement; provided that (x) if such other than in connection with Person is not a merger Loan Party, no Event of Default exists after giving effect to such merger, amalgamation or a consolidation which shall and (y) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be governed by substituted for, Borrower under this Agreement and the other clauses of this Section 6.05) Loan Documents; provided further that Borrower agrees to use commercially reasonable efforts to provide any documentation and distribute its assets ratably to its shareholders if other information about the Successor Borrower determines as shall have been reasonably requested in good faith writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA Patriot Act;
(e) any Restricted Subsidiary may dissolve, liquidate or wind up its affairs at any time if such dissolution, liquidation or dissolution is in the best interests of the Borrower and winding up is not materially disadvantageous to the Lenders; and
(f) any Restricted Subsidiary may effect a merger, consolidation, winding up, liquidation or dissolution in connection with any Investment permitted pursuant to Section 6.04.
Appears in 1 contract
Mergers and Consolidations. The Borrower shall will not, nor shall it cause directly or permit any indirectly, in a single transaction or a series of the Guarantors torelated transactions, consolidate or merge with or into or consolidate with any other Person, or permit any other Person to merge into or consolidate with itanother person, or sell, lease, transfer, lease convey or otherwise dispose of (in one transaction or in a series of transactions) assign all or substantially all of the assets (whether now owned or hereafter acquired) of the Borrower and the Restricted Subsidiaries (taken as a whole, or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing ) unless:
(1) any Person may merge either:
(a) Borrower will be the surviving or consolidate into continuing person; or
(b) the Borrower person (if other than Borrower) formed by or any Guarantor in a transaction in which the Borrower or, in a surviving such consolidation or merger or consolidation to which the Borrower is not partysuch sale, such Guarantor is the surviving corporation, (2) the Borrower or any Guarantor may merge into or consolidate with, or selllease, transfer, lease conveyance or otherwise dispose of all other disposition or substantially all assignment shall be made (collectively, the assets of the Borrower and the Restricted Subsidiaries taken as a whole to, any Person, provided that the resulting, surviving or transferee Person “Successor”) is a corporation, limited liability company or limited partnership organized and validly existing under the laws of any State of the United States or the District of America Columbia, and the Successor expressly assumes, by agreements in form and substance reasonably satisfactory to the Administrative Agent, all of the Obligations of Borrower;
(2) immediately after giving effect to such transaction and the assumption of the obligations as set forth in clause (1)(b) above and the incurrence of any Indebtedness to be incurred in connection therewith, and the use of any net proceeds of such Indebtedness on a pro forma basis, no Default or Event of Default shall have occurred and be continuing; and
(3) immediately after giving effect to such transaction and the assumption of the obligations as set forth in clause (1)(b) above and the incurrence of any jurisdiction thereof Indebtedness to be incurred in connection therewith, and expressly assumes the use of any net proceeds of such Indebtedness on a pro forma basis either (x) the Consolidated Interest Coverage Ratio of Borrower or the Successor, as the case may be, shall be at least 2.00 to 1.00 or (y) the Consolidated Interest Coverage Ratio for Borrower or the Successor, as the case may be, would be equal to or greater than such ratio for Borrower immediately prior to such transaction. For purposes of this covenant, any Indebtedness of the Successor which was not Indebtedness of Borrower immediately prior to the transaction shall be deemed to have been incurred in connection with such transaction to the extent such Indebtedness remains outstanding immediately after giving effect to such transaction. Except in the event of a sale or other disposition of all or substantially all of the assets of a Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all of the Equity Interests of such Guarantor then held by Borrower and its Subsidiaries, in each case in a transaction permitted by Section 6.06, no Guarantor may consolidate with or merge with or into (whether or not such Guarantor is the surviving person) another person, unless:
(1) either:
(a) such Guarantor will be the surviving or continuing person; or
(b) the person (if other than such Guarantor) formed by or surviving any such consolidation or merger is another Guarantor or assumes, by agreements in form and substance reasonably satisfactory to the Administrative Agent, all of the obligations of such Guarantor under the Guarantee of such Guarantor and hereunder; and
(2) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Subsidiaries, the Equity Interests of which constitute all or substantially all of the properties and assets of Borrower, will be deemed to be the transfer of all or substantially all of the properties and assets of Borrower. Upon any consolidation, combination or merger of Borrower or a Guarantor, or any transfer of all or substantially all of the assets of Borrower in accordance with the foregoing, in which Borrower or such Guarantor is not the continuing obligor under this Agreement or its Guarantee, the surviving entity formed by such consolidation or into which Borrower or such Guarantor is merged or the person to which the sale, conveyance, lease, transfer, disposition or assignment is made will succeed to, and be substituted for, and may exercise every right and power of, Borrower or such Guarantor under this Agreement and the Guarantees with the same effect as if such surviving entity had been named therein as Borrower or such Guarantor and, except in the case of a lease, Borrower or such Guarantor, as the case may be, will be released from the obligation to pay the principal of and interest on the Obligations or in respect of its Guarantee, as the case may be, and all of Borrower’s or such Guarantor’s other obligations and covenants hereunder and its Guarantee, if applicable, under . Notwithstanding the Loan Documentsforegoing, (3i) any Guarantor Subsidiary may dispose consolidate with, merge with or into or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to Borrower or another Subsidiary, provided that if such Subsidiary is a Guarantor, the successor must either be a Guarantor or Borrower; and (upon voluntary liquidation or otherwiseii) to the Borrower or any other Guarantor and (4) any Guarantor may liquidate (other than consolidate with, merge with or into or convey, transfer or lease, in connection one transaction or a series of transactions, all or substantially all of its assets to Borrower or another Guarantor or merge with a merger Subsidiary of Borrower solely for the purpose of reincorporating Borrower or a consolidation which shall be governed by the other clauses of this Section 6.05) and distribute its assets ratably to its shareholders if the Borrower determines Guarantor in good faith that such liquidation or dissolution is in the best interests any State of the Borrower and is not materially disadvantageous to United States or the LendersDistrict of Columbia.
Appears in 1 contract
Mergers and Consolidations. (a) The Borrower Company shall not, nor shall it cause or permit any of the Guarantors to, merge into or not consolidate with any other Personor merge with or into, or permit any other Person to merge into convey, transfer or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the its assets (whether now owned or hereafter acquired) of the Borrower and the Restricted Subsidiaries taken as a whole, or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (1) any Person may merge or consolidate into the Borrower or any Guarantor in a transaction in which the Borrower or, in a merger or consolidation to which the Borrower is not party, such Guarantor is the surviving corporation, (2) the Borrower or any Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all the assets of the Borrower and the Restricted Subsidiaries taken as a whole to, any Person, provided that unless:
(1) the resulting, surviving or transferee Person is (the "Successor Company") shall be a corporation, limited liability company or partnership corporation organized and validly existing under the laws of the United States of America America, any State of the United States or any jurisdiction thereof the District of Columbia and the Successor Company (if not the Company) shall expressly assumes assume, by supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Borrower, Company under the Notes and this Indenture;
(2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any Subsidiary of the Successor Company as a result of such Guarantortransaction as having been Incurred by the Successor Company or such Subsidiary at the time of such transaction), as applicable, under the Loan Documents, no Default or Event of Default shall have occurred and be continuing;
(3) any Guarantor may dispose immediately after giving effect to such transaction, the Successor Company would be able to Incur at least an additional $1.00 of all of its assets (upon voluntary liquidation or otherwise) Indebtedness pursuant to the Borrower or any other Guarantor and Section 4.08(a);
(4) each Subsidiary Guarantor (unless it is the other party to the transactions above, in which case clause (1) shall apply) shall have by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Person's obligations in respect of this Indenture and the Notes and its obligations under the Registration Rights Agreement shall continue to be in effect; and
(5) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, subject to customary assumptions and qualifications, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. For purposes of this Section 5.01(a), the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The predecessor Company shall be released from its obligations under this Indenture and the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, but, in the case of a lease of all or substantially all its assets, the predecessor Company shall not be released from the obligation to pay the principal of and interest on the Notes. Notwithstanding Section 5.01(a)(3) above, (x) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company and (y) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction to realize tax benefits; provided that, in the case of a Restricted Subsidiary that merges into the Company, the Company shall not be required to comply with Section 5.01(a)(5).
(b) In addition, the Company shall not permit any Subsidiary Guarantor may liquidate to consolidate with or merge with or into any person (other than in connection with another Subsidiary Guarantor) and shall not permit the conveyance, transfer or lease of substantially all of the assets of any Subsidiary Guarantor unless:
(a) the resulting, surviving or transferee Person shall be a corporation, partnership, trust or limited liability company organized and existing under the laws of the United States of America, any State of the United States or the District of Columbia and such Person (if not such Subsidiary Guarantor) shall expressly assume, by supplemental indenture, executed and delivered to the Trustee, all the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee; (b) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the resulting, surviving or transferee Person or any Restricted Subsidiary as a result of such transaction as having been Incurred by such Person or such Restricted Subsidiary at the time of such transaction), no Default of Event of Default shall have occurred and be continuing; and (c) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, subject to customary assumptions and qualifications, each stating that such consolidation, merger or a consolidation which shall be governed by transfer and such supplemental indenture (if any) comply with this Indenture; or
(2) the other clauses of this transaction is made in compliance with Section 6.05) and distribute its assets ratably to its shareholders if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders4.11.
Appears in 1 contract
Samples: Indenture (Poindexter J B & Co Inc)
Mergers and Consolidations. The Neither the Borrower shall not, nor shall it cause or permit any of the Guarantors to, merge into or Guarantor will consolidate with any other Person, or permit merge with or into any other Person to merge into or consolidate with itconvey, transfer or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets as an entirety to any Person (the Person formed by such consolidation or into which the Company or the Guarantor is merged or the Person which acquires by conveyance, transfer or lease substantially all of the assets (whether now owned or hereafter acquired) of the Company or the Guarantor as the case may be, as an entirety, being referred to herein as the “Successor”) unless:
(i) in the case of a transaction involving the Borrower, the Successor of Borrower shall be a Certificated Air Carrier;
(ii) in the case of either the Borrower or the Guarantor, the Successor shall execute and deliver to the Administrative Agent a duly authorized, valid, binding and enforceable agreement in form and substance reasonably satisfactory to the Administrative Agent containing an assumption by the Successor of the due and punctual performance and observance of each covenant and condition of the Transaction Documents and the Restricted Subsidiaries taken Subordinated Documents to be performed or observed by the Borrower or the Guarantor, as a whole, or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto case may be;
(iii) no Event of Default or Default shall have occurred and be continuing (1) any Person may merge at the time of the proposed transaction, and no Potential Default or consolidate into Event of Default shall arise upon giving effect to such transaction; such transaction shall not materially impair the ability of the Successor to perform the obligations of the Borrower or any Guarantor in a transaction in which the Borrower orGuarantor, in a merger or consolidation as the case may be, under the Transaction Documents and Subordinated Documents to which the Borrower is not party, such or the Guarantor is a party
(A) in the surviving corporationcase of the Borrower, the tangible net worth (determined in accordance with GAAP) of the Successor, after giving effect to such transaction, shall not be less than the greater of (1) the lesser of (x) the tangible net worth of the Borrower immediately prior to such transaction and (y) the tangible net worth of the Borrower as of December 31, 2001, and (2) [***]% of the tangible net worth of the Borrower immediately before completion of such transaction; provided, that if the Guarantor owns more than 50% of the capital stock of the Borrower immediately before such transaction, the net worth test contained in this Section 4.1(c)(iv)(A) shall not prevent the Borrower from completing such transaction with the Guarantor;
(B) in the case of the Guarantor, the tangible net worth (determined in accordance with GAAP) of the Successor, after giving effect to such transaction, shall not be less than the greater of (1) the lesser of (x) the tangible net worth of the Guarantor immediately prior to such transaction and (y) the tangible net worth of the Guarantor as of December 31, 2001, and (2) [***]% of the tangible net worth of the Guarantor immediately before completion of such transaction; provided, that if the Guarantor owns more than 50% of the capital stock of the Borrower immediately before such transaction, the net worth test contained in this Section 4.1(c)(iv)(B) shall not prevent the Guarantor from completing such transaction with the Borrower;
(v) all filings shall have been made as shall be necessary to preserve (A) the Lien of the Senior Mortgages on the Collateral on a first priority and perfected basis (subject to Permitted Liens), and (B) the Lien of the Subordinated Mortgages on the collateral described therein on a second priority and perfected basis (subject to Permitted Liens); and
(vi) promptly after the consummation of such transaction, the Borrower, or if such transaction involved the Borrower, the Successor of the Borrower, shall deliver to the Administrative Agent (A) an Officer’s Certificate of the Successor, certifying as to compliance with the conditions of this Section 4.1(c) and (B) an opinion of counsel reasonably acceptable to the Administrative Agent and in form and substance reasonably acceptable to the Administrative Agent (1) stating that the agreements entered into to effect such consolidation, merger, sale, conveyance, transfer, or lease and such assumption agreements have been duly authorized, executed, and delivered by the Successor and that they (and the Transaction Documents and Subordinated Documents, as the case may be, so assumed) constitute legal, valid, and binding obligations of the Successor, enforceable in accordance with their terms (in the case of the Transaction Documents and the Subordinated Documents, to the same extent as each such Transaction Document or Subordinated Document was enforceable against the Borrower or the Guarantor, as the case may be, immediately prior to such transaction), (2) confirming compliance with Sections 4.1(c)(i), 4.1(c)(ii) and 4.1(c)(iv), as applicable, and stating that all other conditions precedent that are legal in nature provided for in this Agreement and the Borrower other Transaction Documents and Subordinated Documents and relating to such transaction have been fulfilled, and (3) addressing such other matters as the Administrative Agent may reasonably request. Upon any consolidation or merger, or any Guarantor may merge into conveyance, transfer or consolidate with, or sell, transfer, lease or otherwise dispose of all or substantially all of the assets of the Borrower as an entirety in accordance with this Section 4.1(c), the Successor shall succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement and the Restricted Subsidiaries taken other Transaction Documents and Subordinated Documents with the same effect as a whole toif the Successor had been named as the Borrower herein. No such conveyance, any Person, provided that the resulting, surviving transfer or transferee Person is a corporation, limited liability company lease of all or partnership organized and validly existing under the laws of the United States of America or any jurisdiction thereof and expressly assumes substantially all of the obligations assets of the Borrower, or Borrower as an entirety shall have the effect of such Guarantor, as applicable, under the Loan Documents, (3) any Guarantor may dispose of all of its assets (upon voluntary liquidation or otherwise) to releasing the Borrower or any other Guarantor and (4) any Guarantor may liquidate (other than in connection with a merger or a consolidation Person which shall be governed by theretofore have become such in the other clauses of manner prescribed in this Section 6.054.1(c) and distribute its assets ratably from the Borrower’s liability in respect of any Transaction Document or Subordinated Document to its shareholders if the Borrower determines in good faith that such liquidation or dissolution which it is in the best interests of the Borrower and is not materially disadvantageous to the Lendersa party.
Appears in 1 contract
Samples: Loan Agreement (Flyi Inc)
