Restriction on Fundamental Changes. Neither the Company nor any of its Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company's consolidated business or property (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f), (ii) a Subsidiary of the Company may be merged into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.
Appears in 2 contracts
Samples: Credit Agreement (Trimble Navigation LTD /Ca/), Credit Agreement (Trimble Navigation LTD /Ca/)
Restriction on Fundamental Changes. Neither Borrower will not, and will cause each Fundamental Subsidiary not to fundamentally change the Company nor any nature of its Subsidiaries shall business, enter into any merger merger, consolidation, reorganization or consolidationrecapitalization, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell (other than in the ordinary course of its business), assign, lease, sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all any part of the Company's consolidated business its business, property, assets or property (each such transaction a "Fundamental Change")securities, whether now owned or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a)or acquire by purchase or otherwise, 7.3(b) all or 7.3(f)substantially all the business, (ii) a Subsidiary of the Company may be merged into property, assets, securities or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation interest of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (Aa) no Default a Domestic Subsidiary may merge or Unmatured Default shall exist immediately before consolidate with Borrower, provided that the Borrower will be the surviving corporation; (b) a Domestic Subsidiary may merge or after giving effect to such consolidate with another Domestic Subsidiary that is both a Fundamental ChangeSubsidiary and a Restricted Subsidiary; (c) a Domestic Subsidiary may sell, (B) in the case lease, transfer or otherwise dispose of any merger of its assets to Borrower or another Domestic Subsidiary that is both a Fundamental Subsidiary and a Restricted Subsidiary; (d) Borrower may acquire or form additional Subsidiaries; provided that each such newly formed or acquired Subsidiary is wholly-owned by Borrower (unless Borrower has obtained the prior written consent of the CompanyRequisite Banks to acquire or form a Subsidiary which will not be wholly-owned, which consent will not be unreasonably withheld); and further provided that each such newly formed or acquired Subsidiary becomes, on its formation, both a Restricted Subsidiary and a Fundamental Subsidiary; and (e) Borrower and its Subsidiaries may dispose of any assets if the Company is the surviving corporation in aggregate book value (disregarding any write-downs of such merger book value other than ordinary depreciation and such merger is with a Person in a line amortization) of business substantially similar to that all of the Company business, assets, rights, revenues and property disposed of after the date of this Agreement shall be less than 5% of such aggregate book value of the Consolidated total assets of the Borrower and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereofmost recently ended fiscal year, and (C) in if immediately after such transaction, no Unmatured Event of Default or Event of Default shall exist or shall have occurred and be continuing. On the case closing of any merger or consolidation of any Subsidiary of the Companytransaction permitted by this Section 6.3, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall test required by Section 5.12 must be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereofmet.
Appears in 2 contracts
Samples: Credit Agreement (Mueller Industries Inc), Credit Agreement (Mueller Industries Inc)
Restriction on Fundamental Changes. Neither the Company nor any of its Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company's consolidated business or property (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f), (ii) a Subsidiary of the Company may be merged into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; , provided that (A) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.
Appears in 2 contracts
Samples: Credit Agreement (Trimble Navigation LTD /Ca/), Credit Agreement (Trimble Navigation LTD /Ca/)
Restriction on Fundamental Changes. Neither the Company nor any of its Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company's consolidated business or property (each such transaction a "Fundamental ChangeFUNDAMENTAL CHANGE"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a7.3(B), 7.3(b7.3(D) or 7.3(f7.3(G), (ii) a Subsidiary of the Company may be merged into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided , provided, that (A) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereofDate.
Appears in 2 contracts
Samples: Credit Agreement (Lanier Worldwide Inc), Credit Agreement (Lanier Worldwide Inc)
Restriction on Fundamental Changes. Neither The Loan Parties will not, and will not permit their respective Subsidiaries to, directly or indirectly: (A) unless and only to the Company nor extent required by law or as would not be reasonably expected to be adverse to the interests of Lenders, amend, modify or waive any term or provision of its Subsidiaries shall their respective articles of organization, operating agreements, management agreements, articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, articles of formation or partnership agreement (provided that 10 days prior written notice will be delivered to Administrative Agent of any modification that results in a Loan Party, any Subsidiary of a Loan Party or any entity whose equity interest is pledged by a Loan Party pursuant to the Pledge and Security Agreement opting into Article 8 of the UCC); (B) enter into any transaction of merger or consolidation, except that (i) any Subsidiary of Borrower may be merged with or into Borrower (provided that Borrower is the surviving entity), (ii) any Loan Party other than Borrower may merge or consolidate with any other Loan Party other than Borrower, (iii) any Subsidiary that is not a Loan Party may merge, dissolve, liquidate, consolidate with or into any Loan Party, provided that such Loan Party shall be the continuing or surviving corporation, (iv) any Subsidiary which is not a Loan Party may merge, dissolve, liquidate, consolidate with or into any other Subsidiary which is not a Loan Party, (v) any Permitted Acquisition and Investment or any other permitted Investment or any permitted asset disposition may be structured as merger, consolidation or amalgamation; (C) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), except in connection with another transaction permitted under clause (B) above or convey, lease, sell, transfer any Asset Disposition permitted under Subsection 3.7; or (D) acquire by purchase or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company's consolidated business business, assets or property equity interests of or in any Person (each such transaction whether by stock purchase or otherwise) other than pursuant to a "Fundamental Change")Permitted Acquisition and Investment, whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f), (ii) a Subsidiary of the Company may be merged into or consolidated with the Company Verizon Acquisition or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation)other Investment permitted hereunder; provided that if 10 days prior to the predecessor Subsidiary was a Guarantoreffective date of such merger, the surviving Subsidiaryconsolidation, if applicabledissolution, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Personliquidation, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, (B) amalgamation in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date clause (B) or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and clause (C) ), or such acquisition in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunderclause (D), and promptly following such amendment, modification or waiver in the case of clause (D) such transaction is with A), Borrower shall provide written notice and a Person in a line of business substantially similar copy thereof or the documentation relating thereto to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereofAdministrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Atlantic Tele Network Inc /De), Credit Agreement (Atlantic Tele Network Inc /De)
Restriction on Fundamental Changes. Neither the Company nor The U.S. Borrower shall not, and shall not permit any of its Material Subsidiaries shall enter into any merger to: (i) merge or consolidationconsolidate with, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or ii) convey, leasetransfer, sell, transfer lease or otherwise dispose of, of (whether in one transaction or a series of transactions, ) all or substantially all of the Company's consolidated business or property (each such transaction a "Fundamental Change"), whether now owned or hereafter acquired) of the U.S. Borrower and its Subsidiaries, except taken as a whole, to, or (iiii) Fundamental Changes permitted under Sections 7.3(aconvey, transfer, lease or otherwise dispose of (whether in one transaction or a series of transactions, and whether by or pursuant to merger, consolidation or any other arrangement), 7.3(bany property (whether now owned or hereafter acquired) essential to the conduct of the business of the U.S. Borrower and its Subsidiaries, taken as a whole, to, any Person; provided however, that so long as no Default shall have occurred and then be continuing or 7.3(fwould result therefrom, any Person may merge or consolidate with (A) the U.S. Borrower, so long as such Borrower is the surviving entity, (B) any other Borrower, so long as such other Borrower is the surviving entity and (C) any other Material Subsidiary; provided further, that in the case of clauses (A), (iiB) and (C), such merger or consolidation is not otherwise prohibited by this Agreement. Subject to the foregoing, and except to the extent otherwise prohibited by this Agreement, the U.S. Borrower may, directly or indirectly, sell all or a Subsidiary portion of the Company may be merged into capital stock or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation other equity interests of any Subsidiary (including by way of a merger or consolidation) for fair market value, as determined in good faith by the Company into the Company or another U.S. Borrower’s board of directors; provided however, that if such Subsidiary of the Companyis also a Euro Borrower, such Subsidiary ceases to be a Euro Borrower, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or after giving effect prior to such Fundamental Change, (B) sale and all Obligations of such Subsidiary in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes capacity as a result thereof a Wholly-Owned Subsidiary Euro Borrower are paid in full prior to the date of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and such sale. (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.c)
Appears in 2 contracts
Samples: Credit Agreement (FMC Corp), Credit Agreement (FMC Corp)
Restriction on Fundamental Changes. Neither the Company nor any of its Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company's consolidated ’s or any such Subsidiary’s business or property (each such transaction a "Fundamental Change")property, whether now or hereafter acquired, except (i) Fundamental Changes transactions permitted under Sections 7.3(a)6.02 or 6.06) (including the liquidation, 7.3(b) winding up or 7.3(fdissolution of a Subsidiary in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary of the Company may be merged into, liquidated into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) or any liquidation of any Subsidiary of the Company into the Company or another wholly-owned Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that if (Ax) no Default a Subsidiary Borrower is merged into, liquidated into or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is consolidated with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any another Subsidiary of the Company, the surviving corporation in such Fundamental Change Subsidiary shall be (or shall concurrently become) the Subsidiary Borrower, and (y) a Subsidiary Guarantor is merged into, liquidated into or becomes as a result thereof a Wholly-Owned consolidated with another Subsidiary of the Company and if the predecessor Subsidiary was a GuarantorCompany, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 6.11 or 6.17 hereunder, and (Diii) such transaction is if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries in connection with a Person in a line of business substantially similar to Permitted Acquisition; provided that any such merger or related to that of consolidation involving (A) the Company must result in the Company as the surviving entity, (B) subject to the preceding clause (A), a Subsidiary Borrower must result in such Subsidiary Borrower as the surviving entity and its Subsidiaries (C) subject to the preceding clauses (A) and (B), a Subsidiary Guarantor must result in such Subsidiary Guarantor as of the Closing Date or is a logical extension thereofsurviving entity.
Appears in 2 contracts
Samples: Credit Agreement (EDGEWELL PERSONAL CARE Co), Credit Agreement (EDGEWELL PERSONAL CARE Co)
Restriction on Fundamental Changes. Neither the Company nor The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (a) amend, modify or waive any term or provision of its Subsidiaries shall organizational documents, including its articles of incorporation, articles of association, certificates of designations pertaining to preferred stock, by-laws, partnership agreement, operating agreement or any shareholders' agreements (except in a manner that would not conflict with any provision of any Loan Document and would not be adverse in any material respect to Lenders) unless required by law; (b) enter into any merger transaction of merger, amalgamation or consolidation except, (i) upon not less than five (5) Business Days prior written notice to Agent, (w) any Wholly-owned US Subsidiary of a US Borrower may be merged with or into such US Borrower (PROVIDED that such US Borrower is the surviving entity), (x) any Wholly-owned Non-US Subsidiary (other than an Unrestricted Subsidiary) of European Borrower may be merged with or into European Borrower (PROVIDED that European Borrower is the surviving entity), (y) any Wholly-owned Subsidiary of a Borrower may be merged or amalgamated with or into another Wholly-owned Subsidiary of such Borrower (PROVIDED that (A) both such Subsidiaries were formed or incorporated under the laws of the same country, (B) the Stock of the Subsidiary that is the surviving entity is subject to a Pledge Agreement, (C) the Subsidiary that is the surviving entity has executed a Guaranty and (D) neither such Subsidiary is an Unrestricted Subsidiary), (ii) with respect to the European Mergers and (iii) Borrowers and their Subsidiaries may enter into an agreement to effect any merger, amalgamation or consolidation, or the closing of which is conditioned upon the payment in full in cash of all of the Obligations (other than contingent indemnification obligations to the extent Annex A Page 51 no unsatisfied claim giving rise thereto has been asserted) and the termination of the Revolving Loan Commitments; (c) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), except in the case of Subsidiaries of a Borrower, (i) to the extent such Subsidiary is dormant, (ii) to the extent such dissolution, wind-up or conveyliquidation will not have a Material Adverse Effect, lease, sell, transfer or (iii) the Agent shall have consented thereto; or (d) acquire by purchase or otherwise dispose ofall or any substantial part of the business or assets of any other Person. Notwithstanding the foregoing, in one transaction or series of transactionsany Credit Party, may acquire all or substantially all of the Company's consolidated business assets or property Stock of any Person (the "TARGET") (in each such transaction case, a "Fundamental ChangePERMITTED ACQUISITION"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f), (ii) a Subsidiary subject to the satisfaction of each of the Company may be merged into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.following conditions:
Appears in 1 contract
Samples: Credit Agreement (Aas Capital Corp)
Restriction on Fundamental Changes. Neither Borrower will not and will not permit its Significant Subsidiaries directly or indirectly to: (i) unless and only to the Company nor extent required by law, amend, modify or waive any term or provision of its Subsidiaries articles of organization, partnership agreement, operating agreement, management agreements, articles of incorporation or certificates of designations pertaining to preferred stock or by-laws without the consent of CoBank (which consent shall not be unreasonably withheld), other than an amendment, modification or waiver that is solely ministerial or administrative in nature or the reincorporation of Borrower in the State of Delaware; provided, however, Borrower shall promptly give CoBank notice of any such amendment, modification or waiver; (ii) enter into any transaction of merger or consolidationconsolidation or acquire by purchase or otherwise all or any substantial part of the business or assets of any other Person, except (a) any Subsidiary of Borrower may be merged with or into Borrower or any wholly owned Subsidiary of Borrower provided that Borrower or such wholly owned Subsidiary of Borrower is the surviving entity and (b) Borrower or its Subsidiaries may consolidate or merge with or into any other Person or acquire by purchase or otherwise all or any substantial part of the business or assets of any other Person, provided that no Default or Event of Default then exists or would result from such transaction, Borrower or such Subsidiary is the surviving or continuing entity and the consideration for each such transaction provided by Borrower (whether in the form of stock, cash or other consideration) does not exceed $100,000,000 and such consideration for all such transactions under this subclause (b) does not in the aggregate exceed $200,000,000; or (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company's consolidated business or property (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f), (ii) a Subsidiary of the Company may be merged into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.
Appears in 1 contract
Restriction on Fundamental Changes. Neither the Company nor Borrower will not, and will not permit any of its Subsidiaries shall to, directly or indirectly: (i) unless and only to the extent required by law or as would not be reasonably expected to be adverse to the interests of Lenders, amend, modify or waive any term or provision of its articles of organization, operating agreement, management agreements, articles of incorporation, certificates of designations pertaining to preferred stock or by-laws; (ii) enter into any transaction of merger or consolidation, except that any Subsidiary of Borrower may be merged with or into Borrower or any wholly owned Subsidiary (provided that Borrower or such wholly owned Subsidiary is the surviving entity) and except that any Permitted Acquisition or any permitted Asset Disposition may be structured as merger; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, except in one connection with another transaction or series of transactions, all or substantially all of the Company's consolidated business or property (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f), clause (ii) a Subsidiary of the Company may be merged into above; or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) acquire by purchase or otherwise all or any substantial part of the Company may merge with business or assets of any other PersonPerson (whether by stock purchase or otherwise), provided, that Borrower or any Subsidiary of Borrower may acquire all or any substantial part of the Company may consolidate business or merge with assets of any other Person; provided that Person or equity interests in any Person so long as (Aa) no Default or Unmatured Event of Default shall exist immediately exists before or will result after giving effect to such Fundamental Changeacquisition on a pro forma basis, (Bb) such assets or business are held in the case of any merger of the CompanyBorrower, the Company is the surviving corporation in such merger and such merger is an existing Subsidiary or a new Subsidiary that complies with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereofSubsection 2.12, and (Cc) the aggregate amount of assets or business acquired pursuant to this proviso in any fiscal year of Borrower (without deduction for Indebtedness assumed) does not exceed the sum of (X) 5% of Borrower’s consolidated assets for the prior fiscal year plus (Y) the excess, if any, of the amount that Borrower was permitted in the case of any merger prior fiscal year to dividend or consolidation of any Subsidiary distribute pursuant to clause (i) of the Company, first proviso in Subsection 3.5 over the surviving corporation in aggregate amount of dividends and distributions actually made by Borrower during such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary fiscal year pursuant to clause (i) of the Company and if first proviso in Subsection 3.5, minus (Z) the predecessor Subsidiary was a Guarantor, aggregate amount of Investments made pursuant to Section 3.3(I) for the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that fiscal year of the Company and its Subsidiaries as of the Closing Date or is acquisition (each, a logical extension thereof“Permitted Acquisition”).
Appears in 1 contract
Restriction on Fundamental Changes. Neither Borrower will not, and will cause each Fundamental Subsidiary not to fundamentally change the Company nor any nature of its Subsidiaries shall business, enter into any merger merger, consolidation, reorganization or consolidationrecapitalization, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell (other than in the ordinary course of its business), assign, lease, sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all any part of the Company's consolidated business its business, property, assets or property (each such transaction a "Fundamental Change")securities, whether now owned or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a)or acquire by purchase or otherwise, 7.3(b) all or 7.3(f)substantially all the business, (ii) a Subsidiary of the Company may be merged into property, assets, securities or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation interest of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (Aa) no Default a Domestic Subsidiary may merge or Unmatured Default shall exist immediately before consolidate with Borrower, provided that the Borrower will be the surviving corporation; (b) a Domestic Subsidiary may merge or after giving effect to such consolidate with another Domestic Subsidiary that is both a Fundamental ChangeSubsidiary and a Restricted Subsidiary; (c) a Domestic Subsidiary may sell, (B) in the case lease, transfer or otherwise dispose of any merger of its assets to Borrower or another Domestic Subsidiary that is both a Fundamental Subsidiary and a Restricted Subsidiary; (d) Borrower may acquire or form additional Subsidiaries; provided that each such newly formed Subsidiary is wholly-owned by Borrower (unless Borrower has obtained the prior written consent of the CompanyRequisite Banks to acquire or form a Subsidiary which will not be wholly-owned, which consent will not be unreasonably withheld); and further provided that each such newly formed Subsidiary becomes, on its formation, both a Restricted Subsidiary and a Fundamental Subsidiary; and (e) Borrower may dispose of any assets owned by any Subsidiary other than a Fundamental Subsidiary. On the closing of any transaction permitted by this Section 6.3, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall test required by Section 5.12 must be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereofmet.
Appears in 1 contract
Restriction on Fundamental Changes. Neither the Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- Company nor shall not, and shall not permit any of its Restricted Subsidiaries shall to, alter the corporate, capital or legal structure of Company or any of its Restricted Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, leasesell, selllease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all any part of the Company's consolidated business its business, property or property (each such transaction a "Fundamental Change")assets, whether now owned or hereafter acquired, except or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f), (ii) a any Restricted Subsidiary of the Company may be merged with or into or consolidated with the Company or any Whollywholly-Owned owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary Guarantor; provided that, in the Company (in which case the of such a merger, Company or such Wholly-------- wholly-Owned owned Subsidiary Guarantor shall be the continuing or surviving corporation); (ii) Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; (iii) Company and its Restricted Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business; (iv) Company and its Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, -------- consideration received for such assets shall be a Guarantor hereunder, in an amount at least equal to the fair market value thereof; (iiiv) any liquidation of any Subsidiary Company and its Restricted Subsidiaries may make Asset Sales of the Assets Held for Sale or Development; provided that the consideration received -------- for such assets shall be in an amount at least equal to the fair market value thereof; and (vi) Company into and its Restricted Subsidiaries may make Asset Sales of (1) the Company or another Subsidiary of the Company, as applicableLas Vegas Facility, and (iv2) the Company may merge with any other Person, or any Subsidiary assets having an aggregate fair market value not in excess of the Company may consolidate or merge with any other Person$40,000,000; provided that (Aw) no Default or Unmatured Default the consideration received for -------- such assets shall exist immediately before or after giving effect be in an amount at least equal to the fair market value thereof; (x) the consideration received for such Fundamental Change, (B) assets shall be in the case form of any merger of Cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the Companyapplicable Collateral Documents; (y) with respect to an Asset Sale involving the Las Vegas Facility, the Company is the surviving corporation in Net Asset Sale Proceeds of such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries Asset Sale shall be applied as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, required by subsection 2.4B(iii)(d); and (Cz) in the case of any merger or consolidation of any Subsidiary of the Companywith respect to all other Asset Sales permitted under this subsection 7.7(vi), the surviving corporation in Net Asset Sale Proceeds of such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary Asset Sales shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries applied as of the Closing Date or is a logical extension thereof.required by subsection 2.4B(iii)(a). 7.8
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Restriction on Fundamental Changes. Neither the Company nor any of its Subsidiaries shall enter (a) Enter into any ---------------------------------- transaction of merger or consolidation, or ; (b) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution); (c) convey, or conveysell, lease, sellsublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all any substantial part of the Company's consolidated its business or property (each such transaction a "Fundamental Change")assets, whether now owned or hereafter acquired; or (d) (other than with respect to Holdings), issue or sell any capital stock of any Loan Party or its Subsidiaries or any warrants, rights or options to acquire such capital stock or assign, pledge or otherwise encumber or dispose of any shares of capital stock of any Loan Party or its Subsidiaries except as permitted in subsection 7.5 and for the pledge and Lien in favor of Agent pursuant to the Loan Documents; (e) sell any of the Target Shares purchased pursuant to the Offer to Purchase and purchased through Open Market Purchases or assign, pledge or otherwise encumber or dispose of any such purchased Target Shares, except for the pledge and Lien in favor of Agent pursuant to the Loan Documents; or (f) acquire by purchase or otherwise all or any substantial part of the business or assets of, or stock or other evidence of beneficial ownership of, any Person or enter into any joint venture with any Person; provided, however, that (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f)the Acquisition and Merger shall be consummated in accordance with and subject to the terms and conditions of the Acquisition Documents, (ii) a any wholly-owned Subsidiary of the Company Holdings (other than Borrower) or of Borrower may be merged liquidated, wound-up or dissolved into or consolidated with the Company or any Whollyother wholly-Owned owned Subsidiary of the Company (in which case the Company Holdings or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunderBorrower, (iii) upon not less than five (5) Business Days prior written notice to Agent, any liquidation of any wholly-owned Subsidiary of the Company Holdings or Borrower may be merged with or into the Company or another any other wholly-owned Subsidiary of the CompanyHoldings or Borrower, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, (B) Borrower is the surviving entity in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any -------- merger or consolidation of any Subsidiary of to which the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or Borrower is a logical extension thereofparty.
Appears in 1 contract
Samples: Tender Offer Loan Agreement (Lund International Holdings Inc)
Restriction on Fundamental Changes. Neither the Company nor (a) The Borrower shall not, and shall not permit any of its Subsidiaries shall to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company's consolidated its business or property (each such transaction a "Fundamental Change")property, whether now or hereafter acquired, except (i) Fundamental Changes as otherwise permitted under Sections 7.3(a), 7.3(b) or 7.3(f)Section 7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, PROVIDED, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Company Borrower in a Permitted Acquisition permitted hereunder may be merged into or consolidated merge with the Company Borrower or any Whollywholly-Owned owned Subsidiary of the Company (Borrower, PROVIDED, that in which case any such merger, the Company Borrower or such Whollywholly-Owned owned Subsidiary shall be the surviving corporation); provided , PROVIDED, FURTHER, that if in each case, (A) any such wholly-owned Subsidiary of the predecessor Subsidiary was a Guarantor, Borrower which is the surviving Subsidiary, if applicable, corporation of any such merger or to which any business or property is so transferred shall be a Guarantor hereunderparty to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (iiiB) the Borrower shall give the Administrative CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT Agent at least ten (10) days prior written notice of any liquidation such sale, merger or other transfer, (C) the Administrative Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary or the assets of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, so merged and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (AD) no Default or Unmatured Event of Default shall exist immediately before have occurred or be continuing or would occur after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.
Appears in 1 contract
Restriction on Fundamental Changes. Neither the Company nor any of its Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company's consolidated business or property (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a)No Borrower will, 7.3(b) or 7.3(f)nor will it permit any Restricted Subsidiary to, (ii) a Subsidiary of the Company may be merged merge into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge consolidate with any other Person, or any Subsidiary of the Company may consolidate or merge with permit any other Person; provided that Person to merge into or consolidate with it, or liquidate or dissolve, and no Borrower will sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets on a consolidated basis (in each case, whether now owned or hereafter acquired), except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (A) no Default or Unmatured Default shall exist immediately before or after giving effect to any Restricted Subsidiary of any Borrower may merge into any Borrower in a transaction in which such Fundamental Change, Borrower is the surviving corporation; (B) any Restricted Subsidiary may merge into any Loan Party in a transaction in which the surviving entity is a Loan Party; 96 WEIL:\98721861\10\35899.0596 (C) any Person may merge with or into any Loan Party or any of its Restricted Subsidiaries in connection with a Permitted Acquisition so long as, in the case of a merger involving any merger of the CompanyLoan Party, the Company such Loan Party is the surviving corporation entity; (D) any Restricted Subsidiary may (x) sell, transfer, lease or otherwise dispose of its assets to any Borrower or to another Restricted Subsidiary, (y) be dissolved or liquidated into another Loan Party; provided, that the surviving Person is a Loan Party and (z) otherwise have their existence terminated to the extent that the assets of such Restricted Subsidiary are distributed, upon such termination, to one or more Borrowers or Restricted Subsidiaries; provided, that to the extent that any assets that are distributed by a Loan Party shall be distributed to another Loan Party (or another Person who concurrently becomes a Loan Party); and (E) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the Loan Party which owns such Restricted Subsidiary determines in good faith that such liquidation or dissolution is in the best interests of such Loan Party and is not materially disadvantageous to the Lenders; provided, that any such merger and involving a Person that is not a wholly owned Restricted Subsidiary immediately prior to such merger is with a Person in a line of business substantially similar shall not be permitted unless also permitted by Section 6.04(d). Notwithstanding anything to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) contrary in the case foregoing, each Borrower and each of its Restricted Subsidiaries shall be permitted to enter into an agreement to effect any transaction of merger or consolidation that is not otherwise permitted under this Section 6.04(c) at a future time; provided, that such agreement shall be conditioned on (1) obtaining requisite approvals permitting the respective transaction (and any related financing or other transactions) in accordance with the requirements of Section 9.01 or (2) the satisfaction and discharge of all outstanding Obligations under this Agreement and the other Loan Documents; provided, further that such agreement shall (x) not contain any Subsidiary provision imposing fees or damages on any Borrower or any of its respective Restricted Subsidiaries for failure to meet the conditions set forth above and (y) contain termination provisions which will provide for the termination of the Companyagreement within a reasonable time if the conditions described in the preceding proviso have not been satisfied by such time. (ii) No Borrower will, the surviving corporation nor will it permit any of its Restricted Subsidiaries to, engage to any material extent in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary any business other than businesses of the Company type conducted by Livent and if its Restricted Subsidiaries on the predecessor Subsidiary was a Guarantordate of execution of this Agreement and businesses which are, in the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that good faith judgment of the Company Board of Directors, similar, complimentary or substantially related thereto or are reasonable extensions thereof. (iii) Livent and each of its Restricted Subsidiaries as of the Closing Date or is a logical extension thereof.will not change their respective Fiscal Year. (d)
Appears in 1 contract
Samples: Credit Agreement (Livent Corp.)
Restriction on Fundamental Changes. Neither the Company nor any of its Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company's consolidated business or property (each such transaction a "Fundamental FUNDAMENTAL Change"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(aSECTIONS 7.3(B), 7.3(b7.3(D) or 7.3(f7.3(G), (ii) a Subsidiary of the Company may be merged into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided , PROVIDED, that (A) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereofDate.
Appears in 1 contract
Restriction on Fundamental Changes. Neither Except in connection with a Permitted Acquisition, the Company nor Borrower shall not, and shall not permit any of its Subsidiaries to, (a) merge or consolidate with any Person (provided that, if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall enter have occurred and be continuing (i) any Wholly-Owned Subsidiary may merge into the Borrower so long as the Borrower is the surviving company, (ii) any merger Wholly-Owned Subsidiary may merge into or consolidationconsolidate with any other Wholly-Owned Subsidiary in a transaction in which the surviving entity is a Wholly-Owned Subsidiary and no person other than the Borrower or a Wholly-Owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, or liquidate, wind-up or dissolve the surviving entity of such transaction shall be a Loan Party) and (or suffer iii) any liquidation or dissolutionSubsidiary of the Borrower may merge with another person in a transaction constituting an Asset Sale permitted hereunder), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, (b) acquire all or substantially all of the Company's consolidated business Stock or property (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f)Stock Equivalents of any Person, (iic) a Subsidiary acquire all or substantially all of the Company may be merged into assets of any Person or consolidated with the Company all or any Wholly-Owned Subsidiary substantially all of the Company (in which case assets constituting what is known by the Company or such Wholly-Owned Subsidiary shall Borrower to be the surviving corporation); provided that if the predecessor Subsidiary was business of a Guarantordivision, the surviving Subsidiary, if applicable, shall be a Guarantor hereunderbranch or other unit operation of any Person, (iiid) enter into any liquidation of joint venture or partnership with any Person that is not a Loan Party other than any Permitted Joint Venture or (e) acquire or create any Subsidiary of the Company into the Company or another Subsidiary of the Companyunless, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Changeacquisition or creation, (Bi) in the case of any merger of the Company, the Company such Subsidiary is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date Permitted Joint Venture or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company Borrower, (ii) the Borrower is in compliance with Section 7.11 (Additional Collateral and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, Guaranties) and (Diii) the Investment in such transaction Subsidiary is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereofpermitted under Section 8.3 (Investments).
Appears in 1 contract
Restriction on Fundamental Changes. Neither Borrower will not, and will cause each Fundamental Subsidiary not to fundamentally change the Company nor any nature of its Subsidiaries shall business, enter into any merger merger, consolidation, reorganization or consolidationrecapitalization, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell (other than in the ordinary course of its business), assign, lease, sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all any part of the Company's consolidated business its business, property, assets or property (each such transaction a "Fundamental Change")securities, whether now owned or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a)or acquire by purchase or otherwise, 7.3(b) all or 7.3(f)substantially all the business, (ii) a Subsidiary of the Company may be merged into property, assets, securities or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation interest of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (Aa) no Default a Domestic Subsidiary may merge or Unmatured Default shall exist immediately before consolidate with Borrower, provided that the Borrower will be the surviving corporation; (b) a Domestic Subsidiary may merge or after giving effect to such consolidate with another Domestic Subsidiary that is both a Fundamental ChangeSubsidiary and a Restricted Subsidiary; (c) a Domestic Subsidiary may sell, (B) in the case lease, transfer or otherwise dispose of any merger of its assets to Borrower or another Domestic Subsidiary that is both a Fundamental Subsidiary and a Restricted Subsidiary; (d) Borrower may acquire or form additional Subsidiaries; provided that each such newly formed or acquired Subsidiary is wholly-owned by Borrower (unless Borrower has obtained the prior written consent of the CompanyRequisite Banks to acquire or form a Subsidiary which will not be wholly owned, which consent will not be unreasonably withheld); and further provided that each such newly formed or acquired Subsidiary becomes, on its formation, both a Restricted Subsidiary and a Fundamental Subsidiary; and (e) Borrower and its Subsidiaries may dispose of any assets if the Company is the surviving corporation in aggregate book value (disregarding any write-downs of such merger book value other than ordinary depreciation and such merger is with a Person in a line amortization) of business substantially similar to that all of the Company business, assets, rights, revenues and property disposed of after the date of this Agreement shall be less than 5% of such aggregate book value of the Consolidated total assets of the Borrower and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereofmost recently ended fiscal year, and (C) in if immediately after such transaction, no Unmatured Event of Default or Event of Default shall exist or shall have occurred and be continuing. On the case closing of any merger or consolidation of any Subsidiary of the Companytransaction permitted by this Section 6.3, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall test required by Section 5.12 must be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereofmet.
Appears in 1 contract
Restriction on Fundamental Changes. Neither Borrower will not and ---------------------------------- will not permit its Subsidiaries directly or indirectly to: (i) unless and only to the Company nor extent required by law, amend, modify or waive any term or provision of its Subsidiaries articles of organization, partnership agreement, operating agreement, management agreements, articles of incorporation or certificates of designations pertaining to preferred stock or by-laws without the consent of CoBank (which consent shall not be unreasonably withheld), other than an amendment, modification or waiver that is solely ministerial or administrative in nature or the reincorporation of Borrower in the State of Delaware; provided, however, Borrower shall promptly give CoBank notice of any such amendment, modification or waiver; (ii) enter into any transaction of merger or consolidationconsolidation or acquire by purchase or otherwise all or any substantial part of the business or assets of any other Person, except (a) any Subsidiary of Borrower may be merged with or into Borrower or any wholly owned Subsidiary of Borrower provided that Borrower or such wholly owned Subsidiary of Borrower is the surviving entity and (b) Borrower or its Subsidiaries may consolidate or merge with or into any other Person or acquire by purchase or otherwise all or any substantial part of the business or assets of any other Person, provided that no Default or Event of Default then exists or would result from such transaction, Borrower or such Subsidiary is the surviving or continuing entity and the consideration for each such transaction provided by Borrower (whether in the form of stock, cash or other consideration) does not exceed $50,000,000 and such consideration for all such transactions under this subclause (b) does not in the aggregate exceed $100,000,000; or (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company's consolidated business or property (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f), (ii) a Subsidiary of the Company may be merged into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.. Credit Agreement/SureWest Communications
Appears in 1 contract
Restriction on Fundamental Changes. Neither the Company Unless permitted by Section 8.07, no Borrower Party shall, nor shall any Borrower Party permit any of its Wholly-Owned Subsidiaries shall to, enter into any merger or merger, consolidation, reorganization or recapitalization, reclassification of its capital stock which causes the maturity date of such capital stock to be earlier than 3 years after the date of such classification, liquidate, wind-wind up or dissolve (or suffer any liquidation or dissolution), or conveysell, lease, sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of the Company's consolidated its or their business or property (each such transaction a "Fundamental Change")assets, whether now owned or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a)that, 7.3(b) as long as no Default or 7.3(f)Event of Default shall exist after giving effect thereto, (ii) a Subsidiary of the Company may be merged into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (a Borrower Party may be merged or consolidated into a Borrower Party or any other Subsidiary of a Borrower Party or be liquidated, wound up or dissolved, or all or substantially all of its business or assets may be sold, leased, transferred, or otherwise disposed of, in which case the Company one transaction or such Wholly-Owned a series of transactions, to a Borrower Party or any other Subsidiary shall be the surviving corporation)of a Borrower Party; provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) neither any liquidation of Borrower Party nor any Subsidiary of the Company into the Company a Borrower Party may be involved in any such transaction unless such Borrower Party, or another a Subsidiary of the Companya Borrower Party, as applicablethe case may be, is the surviving or acquiring corporation and (iv) the Company may merge with any other Person, net worth of such Borrower Party or any Subsidiary of a Borrower Party, as the Company case may consolidate be, is unchanged or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or higher after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereofother transaction.
Appears in 1 contract
Restriction on Fundamental Changes. Neither the Company nor (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its Subsidiaries shall organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement that is adverse to Lenders, unless required by law; (ii) enter into any transaction of merger or consolidationconsolidation except, upon not less than five (5) Business Days prior written notice to Agent, (A) any wholly-owned Subsidiary of Borrower may be merged with or into Borrower (provided that Borrower is the surviving entity) or with or into any other wholly-owned Subsidiary of Borrower (which must be a Domestic Subsidiary of Borrower if the Subsidiary being merged is a Domestic Subsidiary of Borrower) and (B) Borrower may become a wholly-owned Subsidiary of a corporation organized under the laws of any State of the United States of America so long as (x) no Change of Control results, (y) the new parent of Borrower is a newly formed single-purpose entity and (z) the new parent guarantees the Obligations and secures the Obligations with a pledge in favor of Agent of all of the Stock of Borrower and a general security agreement in favor of Agent over all of its assets, in each case, in form substantially similar to the Loan Documents executed concurrently herewith and delivers to Agent such legal opinions as Agent shall have requested in connection therewith; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company's consolidated business or property (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f), (ii) a that any wholly-owned Subsidiary of the Company Borrower may be merged into liquidate or consolidated with the Company dissolve; or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) acquire by purchase or otherwise all or any substantial part of the Company may merge with business or assets of any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.
Appears in 1 contract
Samples: Credit Agreement (Southern Construction Products Inc)
Restriction on Fundamental Changes. (a) Neither the Company nor any of its Subsidiaries Guarantor shall enter into any merger or consolidationconsolidation without obtaining the prior written consent thereto in writing of the Required Banks, unless the following criteria are met: (i) such Guarantor is the surviving entity; (ii) the entity which is merged into such Guarantor is predominantly in the commercial real estate business; (iii) the creditworthiness of the surviving entity's long term unsecured debt or implied senior debt, as applicable, is either (A) Investment Grade or (B) if not Investment Grade, not lower than Guarantors' creditworthiness two months immediately preceding such merger; and (iv) in the case of any merger where the then fair market value of the assets of the entity which is merged into such Guarantor is more than twenty-five percent (25%) of such Guarantors' then Total Asset Value following such merger, the consent of the Required Banks has been obtained, which consent shall not be unreasonably withheld, conditioned or delayed. Neither the Guarantor shall liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company's consolidated its business or property (each such transaction a "Fundamental Change")property, whether now or hereafter acquired, except (i. Nothing in this Section 5.9(a) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) shall be deemed to prohibit the sale or 7.3(f), (ii) a Subsidiary leasing of portions of the Company may be merged into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, (B) Real Property Assets in the case ordinary course of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereofbusiness.
Appears in 1 contract
Restriction on Fundamental Changes. Neither the Company nor (a) The Borrower shall not, and shall not permit any of its Subsidiaries shall to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company's consolidated its business or property (each such transaction a "Fundamental Change")property, whether now or hereafter acquired, except (i) Fundamental Changes as otherwise permitted under Sections 7.3(a), 7.3(b) or 7.3(f)Section 7.5, (ii) a any wholly-owned Non-Summit Subsidiary of the Borrower other than the Company and any Hardee's Subsidiaries may be merged merge into or consolidated with convey, sell, lease or transfer all or substantially all of its assets to, the Company Borrower or any Whollyother wholly-Owned owned Non-Summit Subsidiary of the Company Borrower, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Non-Summit Subsidiary in which case a Permitted Acquisition permitted hereunder other than the Company and any Hardee's Subsidiaries may merge with the Borrower or any wholly-owned Non-Summit Subsidiary of the Borrower, provided, that in any such merger, the Borrower or such Whollywholly-Owned owned Subsidiary shall be the surviving corporation); provided that if , (iv) with the predecessor Subsidiary was a Guarantorprior written consent of the Agent and the Required Lenders, the surviving Company and any Hardee's Subsidiaries may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other wholly-owned Non-Summit Subsidiary, if applicableprovided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower shall be Solvent and (v) any Summit Subsidiary may merge into or convey, sell, lease or transfer all or substantially all of its assets to, any Summit Subsidiary; provided, that in each case, (A) any such wholly-owned Subsidiary of the Borrower which is the surviving corporation of any such merger or to which any business or property is so transferred shall be a Guarantor hereunder, (iii) any liquidation of any party to the Guaranty and the Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, Security Agreement and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (AB) no Default or Unmatured Event of Default shall exist immediately before have occurred or be continuing or would occur after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.
Appears in 1 contract
Restriction on Fundamental Changes. Neither Borrower will not, and will cause each Restricted Subsidiary not to fundamentally change the Company nor any nature of its Subsidiaries shall business, enter into any merger merger, consolidation, reorganization or consolidationrecapitalization, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell (other than in the ordinary course of its business), assign, lease, sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all any part of the Company's consolidated business its business, property, assets or property (each such transaction a "Fundamental Change")securities, whether now owned or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a)or acquire by purchase or otherwise, 7.3(b) all or 7.3(f)substantially all the business, (ii) a Subsidiary of the Company may be merged into property, assets, securities or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation interest of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (Aa) no Default a Domestic Subsidiary may merge or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Changeconsolidate with Borrower, provided that the Borrower will be the surviving corporation, (Bb) in the case a Domestic Subsidiary may merge or consolidate with another Domestic Subsidiary, (c) a Domestic Subsidiary may sell, lease, transfer or otherwise dispose of any merger of its assets to Borrower or another Domestic Subsidiary, (d) Borrower may acquire or form additional Subsidiaries; provided that each such newly formed Subsidiary is wholly-owned by Borrower (unless Borrower has obtained the prior written consent of the CompanyRequisite Banks to acquire or form a Subsidiary which will not be wholly-owned, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereofconsent will not be unreasonably withheld), and (Ce) in the case Borrower may dispose of any merger assets owned by Lincoln Brass Works, Inc. or consolidation of its subsidiaries, any Subsidiary assets owned by the coaxial cable division of the CompanyPrecision Tube Division of Xxxxxxx Streamlining Co., and/or the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary assets of the Company and if the predecessor Subsidiary was a GuarantorXxxxxxx Copper Tube Products, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereofInc. which are not core manufacturing assets.
Appears in 1 contract
Restriction on Fundamental Changes. Neither the Company nor (a) The Borrower shall not, and shall not permit any of its Subsidiaries shall to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company's consolidated its business or property (each such transaction a "Fundamental Change")property, whether now or hereafter acquired, except (i) Fundamental Changes as otherwise permitted under Sections 7.3(a), 7.3(b) or 7.3(f)Section 7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Company Borrower in a Permitted Acquisition permitted hereunder may be merged into or consolidated merge with the Company Borrower or any Whollywholly-Owned owned Subsidiary of the Company (Borrower, provided, that in which case any such merger, the Company Borrower or such Whollywholly-Owned owned Subsidiary shall be the surviving corporation); provided , provided, that if in each case, (A) any such wholly-owned Subsidiary of the predecessor Subsidiary was a Guarantor, Borrower which is the surviving Subsidiary, if applicable, corporation of any such merger or to which any business or property is so transferred shall be a Guarantor hereunderparty to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (iiiB) the Borrower shall give the Agent at least ten (10) days prior written notice of any liquidation such sale, merger or other transfer, (C) the Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary or the assets of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, so merged and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (AD) no Default or Unmatured Event of Default shall exist immediately before have occurred or be continuing or would occur after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.
Appears in 1 contract
Restriction on Fundamental Changes. Neither the Company nor Borrower will not and will not permit any of its Restricted Subsidiaries shall directly or indirectly to: (i) unless and only to the extent required by law, amend, modify or waive any term or provision of its articles of organization, partnership Credit Agreement/US Unwired Inc. agreement, operating agreement, management agreements, articles of incorporation, certificates of designations pertaining to preferred stock or by-laws, provided that in connection with the IWO Acquisition, Borrower may amend its articles of incorporation and bylaws as described in the Draft S-4; and provided, further, that Borrower may amend its articles of incorporation and bylaws to implement certain anti-takeover provisions as described in the Draft S-4; (ii) enter into any transaction of merger or consolidation, except any Subsidiary of Borrower (other than the Unrestricted Subsidiaries or any of their Subsidiaries) may be merged with or into Borrower or any wholly-owned Subsidiary of Borrower (excluding the Unrestricted Subsidiaries or any of their Subsidiaries), provided that Borrower or such wholly-owned Subsidiary of Borrower (excluding the Unrestricted Subsidiaries or any of their Subsidiaries) is the surviving entity, and except GA PCS Acquisition Merger Subsidiary may merge with GA PCS, with GA PCS as the surviving entity, to consummate the GA PCS Acquisition and IWO Acquisition Merger Subsidiary may merge with IWO, with IWO as the surviving entity, to consummate the IWO Acquisition; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), ; or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company's consolidated business or property (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f), (ii) a Subsidiary of the Company may be merged into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Person, acquire by purchase or otherwise all or any Subsidiary substantial part of the Company may consolidate business or merge with assets of any other Person; provided provided, however, that (A) no Default Borrower or Unmatured Default shall exist immediately before or after giving effect LA Unwired may consummate the GA PCS Acquisition subject to such Fundamental Change, (B) the conditions set forth in Subsection 7.4 and may consummate the case of any merger of IWO Acquisition subject to the Company, the Company is the surviving corporation conditions set forth in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereofSubsection 7.5.
Appears in 1 contract
Samples: Credit Agreement (Us Unwired Inc)
Restriction on Fundamental Changes. Neither the Company nor Borrower will not, and will not permit any of its Subsidiaries shall to, directly or indirectly: (i) unless and only to the extent required by law or as would not be reasonably expected to be adverse to the interests of Lenders, amend, modify or waive any term or provision of its articles of organization, operating agreement, management agreements, articles of incorporation, certificates of designations pertaining to preferred stock or by-laws; (ii) enter into any transaction of merger or consolidation, except that any Subsidiary of Borrower may be merged with or into Borrower or any wholly owned Subsidiary (provided that Borrower or such wholly owned Subsidiary is the surviving entity) and except that any Permitted Credit Agreement/Atlantic Tele-Network, Inc. Acquisition or any permitted Asset Diposition may be structured as merger; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, except in one connection with another transaction or series of transactions, all or substantially all of the Company's consolidated business or property (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f), clause (ii) a Subsidiary of the Company may be merged into above; or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) acquire by purchase or otherwise all or any substantial part of the Company may merge with business or assets of any other PersonPerson (whether by stock purchase or otherwise), provided, that Borrower or any Subsidiary of Borrower may acquire all or any substantial part of the Company may consolidate business or merge with assets of any other Person; provided that Person or equity interests in any Person so long as (Aa) no Default or Unmatured Event of Default shall exist immediately exists before or will result after giving effect to such Fundamental Changeacquisition on a pro forma basis, (Bb) such assets or business are held in the case of any merger of the CompanyBorrower, the Company is the surviving corporation in such merger and such merger is an existing Subsidiary or a new Subsidiary that complies with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereofSubsection 2.12, and (Cc) the aggregate amount of assets or business acquired pursuant to this proviso in any fiscal year of Borrower (without deduction for Indebtedness assumed) does not exceed the sum of (Y) 5% of Borrower’s consolidated assets plus (Z) the excess, if any, of the amount that Borrower was permitted in the case of any merger prior fiscal year to dividend or consolidation of any Subsidiary distribute pursuant to clause (i) of the Company, first proviso in Subsection 3.5 over the surviving corporation in aggregate amount of dividends and distributions actually made by Borrower during such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary fiscal year pursuant to clause (i) of the Company and if the predecessor Subsidiary was first proviso in Subsection 3.5 (each, a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof“Permitted Acquisition”).
Appears in 1 contract
Restriction on Fundamental Changes. Neither the Company nor The U.S. Borrower shall not, and shall not permit any of its Material Subsidiaries shall enter into any merger to: (i) merge or consolidationconsolidate with, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or ii) convey, leasetransfer, sell, transfer lease or otherwise dispose of, of (whether in one transaction or a series of transactions, ) all or substantially all of the Company's consolidated business or property (each such transaction a "Fundamental Change"), whether now owned or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f), (ii) a Subsidiary of the Company may be merged into U.S. Borrower and its Subsidiaries, taken as a whole, to, or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) convey, transfer, lease or otherwise dispose of (whether in one transaction or a series of transactions, and whether by or pursuant to merger, consolidation or any liquidation other arrangement), any property (whether now owned or hereafter acquired) essential to the conduct of the business of the U.S. Borrower and its Subsidiaries, taken as a whole, to, any Person; provided, however, that so long as no Default shall have occurred and then be continuing or would result therefrom, any Person may merge or consolidate with (A) any Borrower, so long as such Borrower is the surviving entity and (B) any Material Subsidiary; provided, further, that in the case of clauses (A) and (B), such merger or consolidation is not otherwise prohibited by this Agreement. Subject to the foregoing, and except to the extent otherwise prohibited by this Agreement, the U.S. Borrower may, directly or indirectly, sell all or a portion of the capital stock or other equity interests of any Subsidiary (including by way of a merger or consolidation) for fair market value, as determined in good faith by the Company into the Company U.S. Borrower’s board of directors; provided, however, that if such Subsidiary is also a Euro Borrower or another Swing Loan Borrower, such Subsidiary of the Companyceases to be a Euro Borrower or Swing Loan Borrower, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or after giving effect prior to such Fundamental Changesale and all Obligations of such Subsidiary in its capacity as a Euro Borrower or Swing Loan Borrower, (Bas applicable are paid in full prior to the date of such sale. Notwithstanding the foregoing, nothing in this Section 6.04(b) in shall prohibit the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company U.S. Borrower and its Subsidiaries as of from consummating the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and Transactions. (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.c)
Appears in 1 contract
Samples: Credit Agreement (FMC Corp)
Restriction on Fundamental Changes. Neither Except in connection with a Permitted Acquisition, the Company nor Borrower shall not, and shall not permit any of its Subsidiaries to, (a) merge or consolidate with any Person (provided that, if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall enter have occurred and be continuing (i) any Wholly-Owned Subsidiary may merge into the Borrower so long as the Borrower is the surviving company, (ii) any merger Wholly-Owned Subsidiary may merge into or consolidationconsolidate with any other Wholly-Owned Subsidiary in a transaction in which the surviving entity is a Wholly-Owned Subsidiary and no person other than the Borrower or a Wholly-Owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, or liquidate, wind-up or dissolve the surviving entity of such transaction shall be a Loan Party) and (or suffer iii) any liquidation or dissolutionSubsidiary of the Borrower may merge with another person in a transaction constituting an Asset Sale permitted hereunder), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, (b) acquire all or substantially all of the Company's consolidated business Stock or property (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f)Stock Equivalents of any Person, (iic) a Subsidiary acquire all or substantially all of the Company may be merged into assets of any Person or consolidated with the Company all or any Wholly-Owned Subsidiary substantially all of the Company (in which case assets constituting the Company business of a division, branch or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunderother unit operation of any Person, (iiid) enter into any liquidation of joint venture or partnership with any Person that is not a Loan Party other than any Permitted Joint Venture or (e) acquire or create any Subsidiary of the Company into the Company or another Subsidiary of the Companyunless, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Changeacquisition or creation, (Bi) in the case of any merger of the Company, the Company such Subsidiary is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date Permitted Joint Venture or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company Borrower, (ii) the Borrower is in compliance with Section 7.11 (Additional Collateral and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, Guaranties) and (Diii) the Investment in such transaction Subsidiary is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereofpermitted under Section 8.3(c) (Investments).
Appears in 1 contract
Samples: Credit Agreement (Washington Group International Inc)
Restriction on Fundamental Changes. Neither the Company nor any of its Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company's consolidated business or property (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a)No Borrower will, 7.3(b) or 7.3(f)nor will it permit any Restricted Subsidiary to, (ii) a Subsidiary of the Company may be merged merge into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge consolidate with any other Person, or any Subsidiary of the Company may consolidate or merge with permit any other Person; provided that Person to merge into or consolidate with it, or liquidate or dissolve, and no Borrower will sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets on a consolidated basis (in each case, whether now owned or hereafter acquired), except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (A) no Default or Unmatured Default shall exist immediately before or after giving effect to any Restricted Subsidiary of any Borrower may merge into any Borrower in a transaction in which such Fundamental Change, Borrower is the surviving corporation; (B) any Restricted Subsidiary may merge into any Loan Party in a transaction in which the surviving entity is a Loan Party; (C) any Person may merge with or into any Loan Party or any of its Restricted Subsidiaries in connection with a Permitted Acquisition so long as, in the case of a merger involving any merger of the CompanyLoan Party, the Company such Loan Party is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and entity; (D) such transaction is with a any Restricted Subsidiary may (x) sell, transfer, lease or otherwise dispose of its assets to any Borrower or to another Restricted Subsidiary, (y) be dissolved or liquidated into another Loan Party; provided, that the surviving Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.Loan Party and (z) otherwise have their existence terminated to the extent that the assets of such Restricted Subsidiary are distributed, upon such termination, to one or more Borrowers or Restricted Subsidiaries; provided, that to the extent that any assets that are distributed by a Loan Party shall be distributed to another Loan Party (or another Person who concurrently becomes a Loan Party); and (E) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the Loan Party which owns such Restricted Subsidiary determines 96 -
Appears in 1 contract
Samples: Credit Agreement (Livent Corp.)
Restriction on Fundamental Changes. Neither the Company nor (a) The Borrower shall not, and shall not permit any of its Subsidiaries shall to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company's consolidated its business or property (each such transaction a "Fundamental Change")property, whether now or hereafter acquired, except (i) Fundamental Changes as otherwise permitted under Sections 7.3(a), 7.3(b) or 7.3(f)Section 7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, PROVIDED, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary CKE SIXTH AMENDED AND RESTATED CREDIT AGREEMENT merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Company Borrower in a Permitted Acquisition permitted hereunder may be merged into or consolidated merge with the Company Borrower or any Whollywholly-Owned owned Subsidiary of the Company (Borrower, PROVIDED, that in which case any such merger, the Company Borrower or such Whollywholly-Owned owned Subsidiary shall be the surviving corporation); provided , PROVIDED, FURTHER, that if in each case, (A) any such wholly-owned Subsidiary of the predecessor Subsidiary was a Guarantor, Borrower which is the surviving Subsidiary, if applicable, corporation of any such merger or to which any business or property is so transferred shall be a Guarantor hereunderparty to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (iiiB) the Borrower shall give the Agent at least ten (10) days prior written notice of any liquidation such sale, merger or other transfer, (C) the Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary or the assets of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, so merged and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (AD) no Default or Unmatured Event of Default shall exist immediately before have occurred or be continuing or would occur after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.
Appears in 1 contract
Restriction on Fundamental Changes. Neither Unless permitted by Section 8.07, the Company nor shall not, and shall not permit any of its Wholly-Owned Subsidiaries shall to, enter into any merger or merger, consolidation, reorganization or recapitalization liquidate, wind-wind up or dissolve (or suffer any liquidation or dissolution), or conveysell, lease, sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of the Company's consolidated its or their business or property (each such transaction a "Fundamental Change")assets, whether now owned or hereafter acquired, except that: (ia) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f), (ii) a Subsidiary of the Company may be merged into or consolidated with the Company or any of its Wholly-Owned Subsidiary Subsidiaries may enter into a merger as part of the Company (in which case a Permitted Acquisition, provided that the Company or such Wholly-Owned Subsidiary shall be owns or controls a majority of the surviving corporation)entity of such merger; and (b) as long as no Default or Event of Default shall exist after giving effect thereto, any Wholly-Owned Subsidiary may be merged or consolidated into the Company, a Subsidiary Borrower or any other Significant Subsidiary which has become a Guarantor or be liquidated, wound up or dissolved, or all or substantially all of its business or assets may be sold, leased, transferred, or otherwise disposed of, in one transaction or a series of transactions, to the Company, a Subsidiary Borrower or any other Significant Subsidiary which has become a Guarantor; provided that if neither the predecessor Company nor any Significant Subsidiary was may be involved in any such transaction unless the Company, a GuarantorSubsidiary Borrower, or a Significant Subsidiary, as the case may be, is the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of or acquiring corporation and the Company into the Company or another Subsidiary net worth of the Company, such Subsidiary Borrower or a Significant Subsidiary, as applicablethe case may be, and (iv) the Company may merge with any other Person, is unchanged or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or higher after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereofother transaction.
Appears in 1 contract
Restriction on Fundamental Changes. Neither the Company nor The Borrower shall not, and shall not permit any of its Subsidiaries shall enter into to, (a) (i) merge with any merger or consolidationPerson, or liquidate(ii) consolidate with any Person, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, iii) acquire all or substantially all of the Company's consolidated business Stock or property (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f), (ii) a Subsidiary of the Company may be merged into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation Stock Equivalents of any Subsidiary of the Company into the Company Person or another Subsidiary of the Company, as applicable, and (iv) acquire all or substantially all of the Company may merge assets of any Person or all or substantially all of the assets constituting the business of a division, branch or other unit operation of any Person, (b) enter into any joint venture or partnership with any other Person, Person or (c) acquire or create any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately unless, before or and after giving effect to such Fundamental Changecreation or acquisition, (B) in the case no Default or Event of any merger of the Company, the Company is the surviving corporation in such merger Default shall have occurred and be continuing and such merger Subsidiary is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company Borrower, the Borrower is in compliance with Section 7.11 (Additional Collateral and if Guaranties) and the predecessor Investment in such Subsidiary was is permitted under Section 8.3(c) (Investments). Notwithstanding the foregoing, with the consent of the Administrative Agent, (i) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may merge or consolidate with, or acquire substantially all of the assets of, any other Subsidiary of the Borrower that is also not a Subsidiary Guarantor, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge or consolidate with, or have substantially all of its assets acquired by, the Borrower or any Subsidiary Guarantor, so long as, in the case of a merger or consolidation, the Borrower or such Subsidiary Guarantor is the survivor of such merger or consolidation, and (iii) any Subsidiary Guarantor may merge or consolidate with, or have substantially all of its assets acquired by, the Borrower or any other Subsidiary Guarantor so long as, in the case of a merger or consolidation of the Borrower and any Subsidiary Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) Borrower is the survivor of such transaction is with a Person in a line of business substantially similar to merger or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereofconsolidation.
Appears in 1 contract
Restriction on Fundamental Changes. Neither the Company nor (a) The Borrower shall not, and shall not permit any of its Subsidiaries shall to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company's consolidated its business or property (each such transaction a "Fundamental Change")property, whether now or hereafter acquired, except (i) Fundamental Changes as otherwise permitted under Sections 7.3(a), 7.3(b) or 7.3(f)Section 7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or ----------- convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Company Borrower in a Permitted Acquisition permitted hereunder may be merged into or consolidated merge with the Company Borrower or any Whollywholly-Owned owned Subsidiary of the Company (Borrower, provided, that in which case any such merger, the Company Borrower or such Whollywholly-Owned owned Subsidiary shall be the surviving corporation); provided , provided, further, that if in each case, (A) any such wholly-owned Subsidiary of the predecessor Subsidiary was a Guarantor, Borrower which is the surviving Subsidiary, if applicable, corporation of any such merger or to which any business or property is so transferred shall be a Guarantor hereunderparty to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (iiiB) ------------ the Borrower shall give the Agent at least ten (10) days prior written notice of any liquidation such sale, merger or other transfer, (C) the Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary or the assets of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, so merged and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (AD) no Default or Unmatured Event of Default shall exist immediately before have occurred or be continuing or would occur after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.
Appears in 1 contract
Restriction on Fundamental Changes. Neither the Company nor (a) The Borrower shall not, and shall not permit any of its Subsidiaries shall to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company's consolidated its business or property (each such transaction a "Fundamental Change")property, whether now or hereafter acquired, except (i) Fundamental Changes as otherwise permitted under Sections 7.3(a), 7.3(b) or 7.3(f)Section 7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, PROVIDED, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Company Borrower in a Permitted Acquisition permitted hereunder may be merged into or consolidated merge with the Company Borrower or any Whollywholly-Owned owned Subsidiary of the Company (Borrower, PROVIDED, that in which case any such merger, the Company Borrower or such Whollywholly-Owned owned Subsidiary shall be the surviving corporation); provided , PROVIDED, FURTHER, that if in each case, (A) any such wholly-owned Subsidiary of the predecessor Subsidiary was a Guarantor, Borrower which is the surviving Subsidiary, if applicable, corporation of any such merger or to which any business or property is so transferred shall be a Guarantor hereunderparty to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (iiiB) the Borrower shall give the Agent at least ten (10) days prior written notice of any liquidation such sale, merger or other transfer, (C) the Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary or the assets of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, so merged and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (AD) no Default or Unmatured Event of Default shall exist immediately before have occurred or be continuing or would occur after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.
Appears in 1 contract
Restriction on Fundamental Changes. Neither the Company nor (a) The Borrower shall not, and shall not permit any of its Subsidiaries shall to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any 77 liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company's consolidated its business or property (each such transaction a "Fundamental Change")property, whether now or hereafter acquired, except (i) Fundamental Changes as otherwise permitted under Sections 7.3(a), 7.3(b) or 7.3(f)Section 7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Company Borrower in a Permitted Acquisition permitted hereunder may be merged into or consolidated merge with the Company Borrower or any Whollywholly-Owned owned Subsidiary of the Company (Borrower, provided, that in which case any such merger, the Company Borrower or such Whollywholly-Owned owned Subsidiary shall be the surviving corporation); provided , provided, that if in each case, (A) any such wholly-owned Subsidiary of the predecessor Subsidiary was a Guarantor, Borrower which is the surviving Subsidiary, if applicable, corporation of any such merger or to which any business or property is so transferred shall be a Guarantor hereunderparty to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.20, a Subsidiary Pledge Agreement, (iiiB) the Borrower shall give the Agent at least ten (10) days prior written notice of any liquidation such sale, merger or other transfer, (C) the Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary or the assets of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, so merged and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (AD) no Default or Unmatured Event of Default shall exist immediately before have occurred or be continuing or would occur after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.
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Restriction on Fundamental Changes. Neither No Borrower shall, or shall permit any Subsidiary to: (a) undergo a Change of Control, (b) acquire by purchase or otherwise all or any material portion of the Company nor assets of, or Capital Stock or other evidence of beneficial ownership, of any Person or any business or division of any Person, (c) merge into or consolidate with any other Person or (d) create any new classes of Capital Stock, except that, so long as Borrowers shall have given at least thirty (30) days prior written notice to Agent of any of its Subsidiaries shall enter the following events and have executed all documents and agreements (including supplemental powers of attorney) and taken such other additional actions as Agent may request in order to protect and continue Agent’s rights and perfection with respect to this Agreement and the other Loan Documents, the Collateral and the liens and security interests in the Collateral created herein and therein, then: (i) any Subsidiary of any Borrower or may merge into or consolidate with any wholly-owned Subsidiary of any Borrower; (ii) any Subsidiary of any Borrower may merge into or consolidate with any Borrower, so long as such Borrower is the surviving entity of such merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Company's consolidated business or property (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b) or 7.3(f), (ii) a Subsidiary of the Company may be merged into or consolidated with the Company or any Wholly-Owned Subsidiary of the Company (in which case the Company or such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, and (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and Borrower (ivother than SecureAlert) the Company may merge into or consolidate with any other PersonBorrower, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that in any merger between any Borrower and another Borrower, the surviving entity does not (A) no Default change its legal name as reflected in its articles or Unmatured Default shall exist immediately before certificate of incorporation, organization or after giving effect to such Fundamental Changeformation and/or as reflected on the records of its jurisdiction of incorporation, (B) in change its jurisdiction of organization and/or become organized under the case laws of any merger of the Companyother jurisdiction, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case change its entity organization number as issued by its jurisdiction of any merger organization, or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line change its chief executive office and principal place of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereofbusiness.
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Restriction on Fundamental Changes. Neither the Company nor (a) The Borrower shall not, and shall not permit any of its Subsidiaries shall to, enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all any substantial part of the Company's consolidated its business or property (each such transaction a "Fundamental Change")property, whether now or hereafter acquired, except (i) Fundamental Changes as otherwise permitted under Sections 7.3(a), 7.3(b) or 7.3(f)Section 7.5, (ii) any wholly-owned Subsidiary of the Borrower other than Hardee's and any of the Hardee's Subsidiaries may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other wholly-owned Subsidiary of the Borrower, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Company Borrower in a Permitted Acquisition permitted hereunder may be merged into or consolidated merge with the Company Borrower or any Whollywholly-Owned owned Subsidiary of the Company (Borrower other than Hardee's and any of the Hardee's Subsidiaries, provided, that in which case any such merger, the Company Borrower or such Whollywholly-Owned owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary, if applicable, shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the Company into the Company or another Subsidiary of the Company, as applicable, and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date may merge into or any business or activities which are similarconvey, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Subsidiary of the Company and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a Person in a line of business substantially similar to or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereof.sell,
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Restriction on Fundamental Changes. (a) Neither the Company ERP nor any of its Subsidiaries EQR shall enter into any merger or consolidation, unless (i) either (x) ERP or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution)EQR is the surviving entity, or convey(y) the individuals constituting EQR’s Board of Trustees immediately prior to such merger or consolidation represent a majority of the surviving entity’s Board of Directors or Board of Trustees after such merger or consolidation, leaseand (ii) the entity which is merged with ERP or EQR is predominantly in the commercial real estate business. The Borrower shall not enter into any merger or consolidation with any Person, sellother than a merger or consolidation with and into ERP, transfer a Wholly-Owned Domestic Subsidiary or otherwise dispose ofan Eligible REIT Subsidiary; provided, in one transaction that (i) ERP, such Wholly-Owned Domestic Subsidiary or series of transactionssuch Eligible REIT Subsidiary, all or substantially as the case may be, assumes all of the Company's consolidated business or property (each such transaction a "Fundamental Change"), whether now or hereafter acquired, except (i) Fundamental Changes permitted obligations of the Borrower under Sections 7.3(a), 7.3(b) or 7.3(f)this Agreement and the other Loan Documents pursuant to documentation reasonably satisfactory to the Administrative Agent, (ii) a Subsidiary of ERP has supplied such documentation and other evidence as is reasonably requested by the Company may Administrative Agent or any Bank in order for the Administrative Agent or such Bank to carry out and be merged into or consolidated satisfied it has complied with the Company results of all necessary “know your customer” or other similar checks under all applicable laws and regulations with respect to any such Wholly-Owned Domestic Subsidiary of or Eligible REIT Subsidiary, as the Company case may be, where the necessary information is not already available to the Administrative Agent or such Bank, (in which case the Company or iii) ERP, such Wholly-Owned Subsidiary shall be the surviving corporation); provided that if the predecessor Subsidiary was a Guarantor, the surviving or such Eligible REIT Subsidiary, if applicableas the case may be, shall be have executed and delivered to the Administrative Agent a Guarantor hereundernew Note for the account of each Bank requesting a new Note, (iii) any liquidation and, upon the execution and delivery of any Subsidiary of the Company into the Company or another Subsidiary of the Companysuch Note, as applicable, such Bank agrees to promptly return any existing Note payable to such Bank and (iv) the Company may merge with any other Person, or any Subsidiary of the Company may consolidate or merge with any other Person; provided that (A) no Default or Unmatured Default shall exist immediately before or after giving effect to such Fundamental Change, (B) in the case of any merger of the Company, the Company is the surviving corporation in such merger and such merger is with a Person in a line of business substantially similar to that of the Company and its Subsidiaries as of the Closing Date or any business or activities which are similar, related or incidental thereto or logical extensions thereof, and (C) in the case of any merger or consolidation of any Subsidiary of the Company, the surviving corporation in such Fundamental Change is or becomes as a result thereof a Wholly-Owned Domestic Subsidiary of the Company and if the predecessor Subsidiary was a Guarantoror Eligible REIT Subsidiary, the surviving Subsidiary Administrative Agent shall have received all documents required to be delivered pursuant to Section 3.1 with respect to a Qualified Subsidiary, each of which shall be a Guarantor hereunderin form and substance reasonably satisfactory to the Administrative Agent. Following any such merger or consolidation, each reference in this Agreement and (D) the other Loan Documents to the “Borrower” shall be deemed to refer to ERP, such transaction Wholly-Owned Domestic Subsidiary or such Eligible REIT Subsidiary, as the case may be, which is with a Person in a line the survivor of business substantially similar to such merger or related to that of the Company and its Subsidiaries as of the Closing Date or is a logical extension thereofconsolidation.
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Samples: Term Loan Agreement (Erp Operating LTD Partnership)
