Co-Issuers May Consolidate, etc., Only on Certain Terms. (a) The Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless permitted by law and unless: (i) the Issuer shall be the surviving entity, or the Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed shall be an exempted company incorporated and existing under the laws of the Cayman Islands or such other jurisdiction outside the United States as may be approved by a Majority of each Class of Notes and the Hedge Counterparty, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the Hedge Counterparty and each Noteholder, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes and the performance of every covenant of this Indenture and the Hedge Agreements on the part of the Issuer to be performed or observed, all as provided herein; (ii) each Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transaction; (iii) if the Issuer is not the surviving entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed shall have agreed with the Trustee (A) to observe the same legal requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or transfer or convey the Collateral or all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10; (iv) if the Issuer is not the surviving entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed shall have delivered to the Trustee and each Rating Agency an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause (a)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); that, immediately following the event that causes such Person to become the successor to the Issuer, (A) such Person has good and marketable title, free and clear of any lien, security interest or charge, other than the lien and security interest of this Indenture, to the Collateral; (B) the Trustee continues to have a valid perfected first priority security interest in the Collateral securing all of the Notes; (C) such Person has received an Opinion of Counsel to the effect that such Person will not be classified for U.S. federal income tax purposes as an association or publicly traded partnership taxable as a corporation; and (D) such other matters as the Trustee may reasonably request; (v) immediately after giving effect to such transaction, no Default shall have occurred and be continuing; (vi) the Issuer shall have delivered to the Trustee, the Hedge Counterparty and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer or conveyance and such supplemental indenture comply with this Section 7, that all conditions precedent in this Section 7 relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Issuer, the Hedge Counterparty or any Noteholder; and (vii) the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither Co-Issuer nor the Collateral will be required to register as an investment company under the Investment Company Act. (b) The Co-Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless: (i) the Co-Issuer shall be the surviving entity, or the Person (if other than the Co-Issuer) formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes and the performance of every covenant of this Indenture on the part of the Co-Issuer to be performed or observed, all as provided herein; (ii) each Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transaction shall have consented to such consolidation, merger, transfer or conveyance; (iii) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have agreed with the Trustee (A) to observe the same legal requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Co-Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10; (iv) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have delivered to the Trustee and each Rating Agency an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause (b)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and such other matters as the Trustee may reasonably request; (v) immediately after giving effect to such transaction, no Default shall have occurred and be continuing; (vi) the Co-Issuer shall have delivered to the Trustee, the Hedge Counterparty and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Section 7 and that all conditions precedent in this Section 7 provided for relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Co-Issuer, the Hedge Counterparty or any Noteholder; (vii) the Co-Issuer shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither Co-Issuer will be required to register as an investment company under the Investment Company Act; and (viii) after giving effect to such transaction, the outstanding stock of the Co-Issuer will not be beneficially owned by any Person other than the Issuer.
Appears in 2 contracts
Samples: Indenture (Taberna Realty Finance Trust), Indenture (Taberna Realty Finance Trust)
Co-Issuers May Consolidate, etc., Only on Certain Terms. Neither the Issuer nor the Co-Issuer (athe “Merging Entity”) The Issuer shall not consolidate or merge with or into any other Person or or, except as permitted under this Indenture, transfer or convey all or substantially all of its assets to any Person, unless permitted by Cayman Islands law (in the case of the Issuer), United States and Delaware law (in the case of the Co-Issuer) and unless:
(ia) the Issuer Merging Entity shall be the surviving entity, or the Person (if other than the IssuerMerging Entity) formed by such consolidation or into which the Issuer Merging Entity is merged or to which all or substantially all of the assets of the Issuer Merging Entity are transferred or conveyed (the “Successor Entity”) (A) if the Merging Entity is the Issuer, shall be an exempted a company incorporated organized and existing under the laws of the Cayman Islands or such other jurisdiction outside the United States as may be approved by a Majority of each Class the Controlling Class; provided that, no such approval shall be required in connection with any such transaction undertaken solely to effect a change in the jurisdiction of Notes and the Hedge Counterpartyincorporation pursuant to Section 7.4, and (B) shall expressly assume, by an indenture supplemental heretohereto and an omnibus assumption agreement, executed and delivered to the Trustee, each Holder, the Hedge Counterparty Portfolio Manager and each Noteholderthe Collateral Administrator, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes Notes, the payments to the Issuer and the performance and observance of every covenant of this Indenture and the Hedge Agreements of each other Transaction Document on the its part of the Issuer to be performed or observed, all as provided hereinherein or therein, as applicable;
(iib) the Trustee shall have received, as soon as reasonably practicable and in any case no less than five (5) days prior to such merger or consolidation, notice of such consolidation or merger and shall have distributed copies of such notice to each Rating Agency of such merger or consolidation, and the Trustee shall have received written notification of such consolidation, merger, transfer or conveyance and the confirmation from each Rating Condition shall have been satisfied Agency that its ratings issued with respect to the Notes then rated by such Rating Agency shall not be reduced or withdrawn as a result of the consummation of such transaction;
(iiic) if the Issuer Merging Entity is not the surviving entitycorporation, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed Successor Entity shall have agreed with the Trustee (Ai) to observe the same legal requirements for the recognition of such formed or surviving entity corporation as a legal entity separate and apart from any of its Affiliates as are applicable to the Issuer Merging Entity with respect to its Affiliates and (Bii) not to consolidate or merge with or into any other Person or transfer or convey the Collateral Assets or all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(ivd) if the Issuer Merging Entity is not the surviving entitycorporation, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed Successor Entity shall have delivered to the Trustee and each the Rating Agency Agency, an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause subsection (a)(ia) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding Proceeding in equity or at law); if the Merging Entity is the Issuer, that, immediately following the event that which causes such Person Successor Entity to become the successor to the Issuer, (Ai) such Person Successor Entity has good and marketable title, free and clear of any lien, security interest or charge, other than the lien and security interest of this Indenture, to the Collateral; Assets securing all of the Notes, and (Bii) the Trustee continues to have a valid perfected first priority security interest in the Collateral Assets securing all of the Notes; (C) such Person has received an Opinion of Counsel and in each case as to the effect that such Person will not be classified for U.S. federal income tax purposes as an association or publicly traded partnership taxable as a corporation; and (D) such other matters as the Trustee or any Holder may reasonably requestrequire; provided, that nothing in this clause shall imply or impose a duty on the Trustee to require such other documents;
(ve) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(vif) the Issuer Merging Entity shall have notified each Rating Agency of such consolidation, merger, transfer or conveyance and shall have delivered to the Trustee, the Hedge Counterparty Trustee and each Noteholder Holder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer or conveyance and such supplemental indenture comply with this Section 7, Article VII and that all conditions precedent in this Section 7 Article VII relating to such transaction have been complied with and that no such transaction will not (1) result in the Merging Entity or the Successor Entity being treated as a publicly traded partnership or an association, in either case, taxable as a corporation for U.S. federal income tax purposes or otherwise subject to U.S. federal income taxation with respect to its net income or to any withholding tax liability under Section 1446 of the Code or (2) have a material adverse effect on the tax treatment of the Issuer or the tax consequences will result therefrom to the IssuerHolders of any Class of Notes Outstanding at the time of such consolidation, the Hedge Counterparty merger, transfer or any Noteholderconveyance; and
(viig) the Issuer Merging Entity shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither of the Co-Issuer nor Issuers (or, if applicable, the Collateral Successor Entity) will be required to register as an investment company under the Investment Company Act.
(b) The Co-Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless:
(i) the Co-Issuer shall be the surviving entity, or the Person (if other than the Co-Issuer) formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes and the performance of every covenant of this Indenture on the part of the Co-Issuer to be performed or observed, all as provided herein;
(ii) each Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transaction shall have consented to such consolidation, merger, transfer or conveyance;
(iii) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have agreed with the Trustee (A) to observe the same legal requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Co-Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(iv) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have delivered to the Trustee and each Rating Agency an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause (b)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and such other matters as the Trustee may reasonably request;
(v) immediately after giving effect to such transaction, no Default shall have occurred and be continuing;
(vi) the Co-Issuer shall have delivered to the Trustee, the Hedge Counterparty and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Section 7 and that all conditions precedent in this Section 7 provided for relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Co-Issuer, the Hedge Counterparty or any Noteholder;
(vii) the Co-Issuer shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither Co-Issuer will be required to register as an investment company under the Investment Company Act; and
(viii) after giving effect to such transaction, the outstanding stock of the Co-Issuer will not be beneficially owned by any Person other than the Issuer.
Appears in 1 contract
Co-Issuers May Consolidate, etc., Only on Certain Terms. Neither the Issuer nor the Co-Issuer (athe “Merging Entity”) The Issuer shall not consolidate or merge with or into any other Person or or, except as permitted under this Indenture, transfer or convey all or substantially all of its assets to any Person, unless permitted by Cayman Islands law (in the case of the Issuer) or United States and Delaware law (in the case of the Co-Issuer) and unless:
(ia) the Issuer Merging Entity shall be the surviving entitycorporation, or the Person (if other than the IssuerMerging Entity) formed by such consolidation or into which the Issuer Merging Entity is merged or to which all or substantially all of the assets of the Issuer Merging Entity are transferred or conveyed (the “Successor Entity”) (A) if the Merging Entity is the Issuer, shall be an exempted a company incorporated and existing under the laws of the Cayman Islands or such other jurisdiction outside the United States as may be approved by a Majority of each Class the Controlling Class, provided that no such approval shall be required in connection with any such transaction undertaken solely to effect a change in the jurisdiction of Notes and the Hedge Counterpartyincorporation pursuant to Section 7.4, and (B) in any case shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the Hedge Counterparty Trustee and each NoteholderHolder, the due and punctual payment of the principal of and interest and the Commitment Fee on all Secured Notes and the performance and observance of every covenant of this Indenture and the Hedge Agreements on the its part of the Issuer to be performed or observed, all as provided herein;
(iib) each the S&P Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transactionconsolidation or merger;
(iiic) if the Issuer Merging Entity is not the surviving entitySuccessor Entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed Successor Entity shall have agreed with the Trustee (Ai) to observe the same legal requirements for the recognition of such formed or surviving entity corporation as a legal entity separate and apart from any of its Affiliates as are applicable to the Issuer Merging Entity with respect to its Affiliates and (Bii) not to consolidate or merge with or into any other Person or transfer or convey the Collateral Assets or all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(ivd) if the Issuer Merging Entity is not the surviving entitySuccessor Entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed Successor Entity shall have delivered to the Trustee and each Trustee, the Collateral Manager, the Issuer (and, subject to Section 14.3(c), the Issuer shall have delivered to the Rating Agency so long as it is rating a Class of Secured Notes) an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be is duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause subsection (a)(ia) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding Proceeding in equity or at law); if the Merging Entity is the Issuer, that, immediately following the event that which causes such Person Successor Entity to become the successor to the Issuer, (Ai) such Person Successor Entity has good and marketable title, free and clear of any lien, security interest or charge, other than the lien and security interest of this IndentureIndenture and any other Permitted Lien, to the Collateral; Assets securing the Secured Notes and (Bii) the Trustee continues to have a valid perfected first priority security interest in the Collateral Assets securing all of the Secured Notes; (C) such Person has received an Opinion of Counsel and in each case as to the effect that such Person will not be classified for U.S. federal income tax purposes as an association or publicly traded partnership taxable as a corporation; and (D) such other matters as the Trustee or any Holder may reasonably requestrequire; provided that nothing in this clause shall imply or impose a duty on the Trustee to require such other documents;
(ve) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(vif) the Merging Entity shall have notified the Collateral Manager, the Issuer (and, subject to Section 14.3(c), the Issuer shall have notified the Rating Agency so long as it is rating a Class of Secured Notes) of such consolidation, merger, transfer or conveyance and shall have delivered to the Trustee, the Hedge Counterparty Trustee and each Noteholder Holder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer or conveyance and such supplemental indenture comply with this Section 7, Article VII and that all conditions precedent in this Section 7 Article VII relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Issuer, the Hedge Counterparty or any Noteholder; andwith;
(viig) the Issuer Merging Entity shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither of the Co-Issuer nor Issuers (or, if applicable, the Collateral Successor Entity) will be required to register as an investment company under the Investment Company Act.
(b) The Co-Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless:
(i) the Co-Issuer shall be the surviving entity, or the Person (if other than the Co-Issuer) formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes and the performance of every covenant of this Indenture on the part of the Co-Issuer to be performed or observed, all as provided herein;
(ii) each Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transaction shall have consented to such consolidation, merger, transfer or conveyance;
(iii) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have agreed with the Trustee (A) to observe the same legal requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Co-Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(iv) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have delivered to the Trustee and each Rating Agency an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause (b)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and such other matters as the Trustee may reasonably request;
(v) immediately after giving effect to such transaction, no Default shall have occurred and be continuing;
(vi) the Co-Issuer shall have delivered to the Trustee, the Hedge Counterparty and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Section 7 and that all conditions precedent in this Section 7 provided for relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Co-Issuer, the Hedge Counterparty or any Noteholder;
(vii) the Co-Issuer shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither Co-Issuer will be required to register as an investment company under the Investment Company Act; and
(viiih) after giving effect to such transaction, the outstanding stock of the Co-Issuer Merging Entity (or, if applicable, the Successor Entity) will not be beneficially owned within the meaning of the Investment Company Act by any Person U.S. person;
(i) the fees, costs and expenses of the Trustee (including any reasonable legal fees and expenses) associated with the matters addressed in this Section 7.10 shall have been paid by the Merging Entity (or, if applicable, the Successor Entity) or otherwise provided for to the satisfaction of the Trustee; and
(j) after giving effect to such transaction, the Successor Entity is not treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or otherwise subject to U.S. federal income tax on a net basis (including any tax imposed under Section 1446 of the Code), other than by operation of Subchapter C of Chapter 63 of the IssuerCode.
Appears in 1 contract
Co-Issuers May Consolidate, etc., Only on Certain Terms. (a) The Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless permitted by law and unless:
(i) the Issuer shall be the surviving entity, or the Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed shall be an exempted company incorporated and existing under the laws of the Cayman Islands or such other jurisdiction outside the United States as may be approved by a Majority of each Class of Notes and the Hedge Counterparty, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the Hedge Counterparty and each Noteholder, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes and the performance of every covenant of this Indenture and the Hedge Agreements on the part of the Issuer to be performed or observed, all as provided herein;
(ii) each Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transaction;
(iii) if the Issuer is not the surviving entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed shall have agreed with the Trustee (A) to observe the same legal requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or transfer or convey the Collateral or the Treasury Strip Collateral or all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(iv) if the Issuer is not the surviving entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed shall have delivered to the Trustee and each Rating Agency an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause (a)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); that, immediately following the event that causes such Person to become the successor to the Issuer, (A) such Person has good and marketable title, free and clear of any lien, security interest or charge, other than the lien and security interest of this Indenture, to the Collateral or the Treasury Strip Collateral, as the case may be; (B) the Trustee continues to have a valid perfected first priority security interest in the Collateral securing all of the NotesNotes or the applicable Treasury Strip Collateral securing the related Class P-1 Treasury Strip Collateral, the Class P-2 Treasury Strip Collateral and the Class P-3 Treasury Strip Collateral; (C) such Person has received an Opinion of Counsel to the effect that such Person will not be classified for U.S. federal income tax purposes as an association or publicly traded partnership taxable as a corporation; and (D) such other matters as the Trustee may reasonably request;
(v) immediately after giving effect to such transaction, no Default shall have occurred and be continuing;
(vi) the Issuer shall have delivered to the Trustee, the Hedge Counterparty and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer or conveyance and such supplemental indenture comply with this Section 7, that all conditions precedent in this Section 7 relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Issuer, the Hedge Counterparty or any Noteholder; and
(vii) the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither Co-Issuer nor the Collateral will be required to register as an investment company under the Investment Company Act.
(b) The Co-Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless:
(i) the Co-Issuer shall be the surviving entity, or the Person (if other than the Co-Issuer) formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes and the performance of every covenant of this Indenture on the part of the Co-Issuer to be performed or observed, all as provided herein;
(ii) each Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transaction shall have consented to such consolidation, merger, transfer or conveyance;
(iii) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have agreed with the Trustee (A) to observe the same legal requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Co-Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(iv) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have delivered to the Trustee and each Rating Agency an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause (b)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and such other matters as the Trustee may reasonably request;
(v) immediately after giving effect to such transaction, no Default shall have occurred and be continuing;
(vi) the Co-Issuer shall have delivered to the Trustee, the Hedge Counterparty and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Section 7 and that all conditions precedent in this Section 7 provided for relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Co-Issuer, the Hedge Counterparty or any Noteholder;
(vii) the Co-Issuer shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither Co-Issuer will be required to register as an investment company under the Investment Company Act; and
(viii) after giving effect to such transaction, the outstanding stock of the Co-Issuer will not be beneficially owned by any Person other than the Issuer.
Appears in 1 contract
Co-Issuers May Consolidate, etc., Only on Certain Terms. Neither the Issuer nor the Co-Issuer (athe "Merging Entity") The Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless permitted by Cayman Islands law (in the case of the Issuer) or United States and Delaware law (in the case of the Co-Issuer) and unless:
(ia) the Issuer Merging Entity shall be the surviving entitycorporation, or the Person (if other than the IssuerMerging Entity) formed by such consolidation or into which the Issuer Merging Entity is merged or to which all or substantially all of the assets of the Issuer Merging Entity are transferred or conveyed (the "Successor Entity") (A) if the Merging Entity is the Issuer, shall be an exempted a company incorporated organized and existing under the laws of the Cayman Islands or such other jurisdiction outside the United States as may be approved by a Majority of each the Controlling Class (provided that no such approval shall be required in connection with any such transaction undertaken solely to effect a change in the jurisdiction of Notes and the Hedge Counterpartyincorporation pursuant to Section 7.4), and (B) in any case shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the Hedge Counterparty Trustee and each NoteholderHolder, the due and punctual payment of the principal of and interest and the Commitment Fee on all Secured Notes and the performance and observance of every covenant of this Indenture and the Hedge Agreements on the its part of the Issuer to be performed or observed, all as provided herein;
(iib) each Rating Agency shall have been notified in writing of such consolidation or merger and the Trustee shall have received written notification of such consolidation, merger, transfer or conveyance and the confirmation from each Rating Condition shall have been satisfied Agency that its ratings issued with respect to the Secured Notes then rated by such Rating Agency will not be reduced or withdrawn as a result of the consummation of such transaction;
(iiic) if the Issuer Merging Entity is not the surviving entitySuccessor Entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed Successor Entity shall have agreed with the Trustee (Ai) to observe the same legal requirements for the recognition of such formed or surviving entity corporation as a legal entity separate and apart from any of its Affiliates as are applicable to the Issuer Merging Entity with respect to its Affiliates and (Bii) not to consolidate or merge with or into any other Person or transfer or convey the Collateral Assets or all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(ivd) if the Issuer Merging Entity is not the surviving entitySuccessor Entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed Successor Entity shall have delivered to the Trustee and each Rating Agency an Officer’s 's certificate and an Opinion of Counsel each stating that such Person shall be is duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause sub-Section (a)(ia) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ ' rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); if the Merging Entity is the Issuer, that, immediately following the event that which causes such Person Successor Entity to become the successor to the Issuer, (Ai) such Person Successor Entity has good and marketable title, free and clear of any lien, security interest or charge, other than the lien and security interest of this Indenture, to the Collateral; Assets, (Bii) the Trustee continues to have a valid perfected first priority security interest in the Collateral securing all of the Notes; Assets and (Ciii) such Person has received an Opinion of Counsel to the effect that such Person Successor Entity will not be classified subject to U.S. net income tax, foreign corporate tax, be treated as engaged in a trade or business within the United States for U.S. federal income tax purposes as an association or publicly traded partnership taxable as otherwise subject to tax on a corporationnet income basis in any jurisdiction outside its jurisdiction of incorporation; and (D) in each case as to such other matters as the Trustee or any Noteholder may reasonably requestrequire at its option (and without obligation hereunder);
(ve) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(vif) the Issuer Merging Entity shall have notified each Rating Agency of such consolidation, merger, transfer or conveyance and shall have delivered to the Trustee, the Hedge Counterparty Trustee and each Noteholder an Officer’s 's certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer or conveyance and such supplemental indenture comply with this Section 7, Article 7 and that all conditions precedent in this Section Article 7 relating to such transaction have been complied with and that no adverse such consolidation, merger, transfer or conveyance will not cause the Issuer to be treated as engaged in a trade or business within the United States for federal income tax consequences purposes or otherwise subject to tax on a net income basis in any jurisdiction outside its jurisdiction of incorporation and will result therefrom not cause any Class of Notes to the Issuer, the Hedge Counterparty or any Noteholder; andbe deemed retired and reissued;
(viig) the Issuer Merging Entity shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither Co-Issuer nor the Collateral will be required to register as an investment company under the Investment Company Act.
(b) The Co-Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless:
(i) the Co-Issuer shall be the surviving entity, or the Person (if other than the Co-Issuer) formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall expressly assumeIssuers (or, by an indenture supplemental hereto, executed and delivered to the Trusteeif applicable, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes and the performance of every covenant of this Indenture on the part of the Co-Issuer to be performed or observed, all as provided herein;
(iiSuccessor Entity) each Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transaction shall have consented to such consolidation, merger, transfer or conveyance;
(iii) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have agreed with the Trustee (A) to observe the same legal requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Co-Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(iv) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have delivered to the Trustee and each Rating Agency an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause (b)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and such other matters as the Trustee may reasonably request;
(v) immediately after giving effect to such transaction, no Default shall have occurred and be continuing;
(vi) the Co-Issuer shall have delivered to the Trustee, the Hedge Counterparty and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Section 7 and that all conditions precedent in this Section 7 provided for relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Co-Issuer, the Hedge Counterparty or any Noteholder;
(vii) the Co-Issuer shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither Co-Issuer will be required to register as an investment company under the Investment Company Act; and
(viiih) after giving effect to such transaction, the outstanding stock of the Co-Issuer Merging Entity (or, if applicable, the Successor Entity) will not be beneficially owned within the meaning of the Investment Company Act by any Person other than the IssuerU.S. Person.
Appears in 1 contract
Samples: Indenture (JMP Group Inc.)
Co-Issuers May Consolidate, etc., Only on Certain Terms. (a) The Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless permitted by law and unless:
(i) the Issuer shall be the surviving entity, or the Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed shall be an exempted company incorporated and existing under the laws of the Cayman Islands or such other jurisdiction outside the United States as may be approved by a Majority of each Class of Notes and the Hedge Counterparty, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the Hedge Counterparty and each Noteholder, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes and the performance of every covenant of this Indenture and the Hedge Agreements on the part of the Issuer to be performed or observed, all as provided herein;
(ii) each Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transaction;
(iii) if the Issuer is not the surviving entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed shall have agreed with the Trustee (A) to observe the same legal requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or transfer or convey the Collateral or all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(iv) if the Issuer is not the surviving entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed shall have delivered to the Trustee and each Rating Agency an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause (a)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); that, immediately following the event that causes such Person to become the successor to the Issuer, (A) such Person has good and marketable title, free and clear of any lien, security interest or charge, other than the lien and security interest of this Indenture, to the Collateral; (B) the Trustee continues to have a valid perfected first priority security interest in the Collateral securing all of the Notes; (C) such Person has received an Opinion of Counsel to the effect that such Person will not be classified for U.S. federal income tax purposes as an association or publicly traded partnership taxable as a corporation; and (D) such other matters as the Trustee may reasonably request;
(v) immediately after giving effect to such transaction, no Default shall have occurred and be continuing;
(vi) the Issuer shall have delivered to the Trustee, the Hedge Counterparty and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer or conveyance and such supplemental indenture comply with this Section 7, that all conditions precedent in this Section 7 relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Issuer, the Hedge Counterparty or any Noteholder; and
(vii) the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither Co-Issuer nor the Collateral will be required to register as an investment company under the Investment Company Act.
(b) The Co-Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless:
(i) the Co-Issuer shall be the surviving entity, or the Person (if other than the Co-Issuer) formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes and the performance of every covenant of this Indenture on the part of the Co-Issuer to be performed or observed, all as provided herein;
(ii) each Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transaction shall have consented to such consolidation, merger, transfer or conveyance;
(iii) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have agreed with the Trustee (A) to observe the same legal requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Co-Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(iv) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have delivered to the Trustee and each Rating Agency an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause (b)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and such other matters as the Trustee may reasonably request;
(v) immediately after giving effect to such transaction, no Default shall have occurred and be continuing;
(vi) the Co-Issuer shall have delivered to the Trustee, the Hedge Counterparty and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Section 7 and that all conditions precedent in this Section 7 provided for relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Co-Issuer, the Hedge Counterparty or any Noteholder;
(vii) the Co-Issuer shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither Co-Issuer will be required to register as an investment company under the Investment Company Act; and
(viii) after giving effect to such transaction, the outstanding stock of the Co-Issuer will not be beneficially owned by any Person other than the Issuer.
Appears in 1 contract
Co-Issuers May Consolidate, etc., Only on Certain Terms. Neither the Issuer nor the Co-Issuer (athe "Merging Entity") The Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless permitted by Cayman Islands law (in the case of the Issuer) or United States and Delaware law (in the case of the Co-Issuer) and unless:
(ia) the Issuer Merging Entity shall be the surviving entity, or the Person (if other than the IssuerMerging Entity) formed by such consolidation or into which the Issuer Merging Entity is merged or to which all or substantially all of the assets of the Issuer Merging Entity are transferred or conveyed (the "Successor Entity") (i) if the Merging Entity is the Issuer, shall be an exempted a company incorporated and existing under the laws of the Cayman Islands or such other jurisdiction outside the United States as may be approved by a Majority of each Class the Controlling Class; provided that no such approval shall be required in connection with any such transaction undertaken solely to effect a change in the jurisdiction of Notes and the Hedge Counterpartyincorporation pursuant to Section 7.4, and (ii) in any case shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the Hedge Counterparty Trustee and each NoteholderHolder, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes Secured Debt issued by the Merging Entity and the performance and observance of every covenant of this Indenture and the Hedge Agreements each other Transaction Document on the its part of the Issuer to be performed or observed, all as provided hereinherein or therein;
(iib) the Trustee shall have received notice of such consolidation or merger and shall have distributed copies of such notice to each Rating Agency as soon as reasonably practicable and in any case no less than five days prior to such merger or consolidation, and the Trustee shall have received written notification of such consolidation, merger, transfer or conveyance and the confirmation from each Rating Condition shall have been satisfied Agency that its ratings issued with respect to the Secured Debt then rated by such Rating Agency shall not be reduced or withdrawn as a result of the consummation of such transaction;
(iiic) if the Issuer Merging Entity is not the surviving entitycorporation, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed Successor Entity shall have agreed with the Trustee (Ai) to observe the same legal requirements for the recognition of such formed or surviving entity corporation as a legal entity separate and apart from any of its Affiliates as are applicable to the Issuer Merging Entity with respect to its Affiliates and (Bii) not to consolidate or merge with or into any other Person or transfer or convey the Collateral Assets or all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(ivd) if the Issuer Merging Entity is not the surviving entitycorporation, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed Successor Entity shall have delivered to the Trustee and each Rating Agency Agency, an Officer’s 's certificate and an Opinion of Counsel each stating that such Person shall be is duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause subsection (a)(ia) above and to execute and deliver an a supplemental indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ ' rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding Proceeding in equity or at law); if the Merging Entity is the Issuer, that, immediately following the event that which causes such Person Successor Entity to become the successor to the Issuer, (Ai) such Person Successor Entity has good and marketable title, free and clear of any lien, security interest or charge, other than the lien and security interest of this Indenture, to the Collateral; Assets securing all of the Secured Debt, and (Bii) the Trustee continues to have a valid perfected first priority security interest in the Collateral Assets securing all of the Notes; (C) such Person has received an Opinion of Counsel to the effect that such Person will not be classified for U.S. federal income tax purposes as an association or publicly traded partnership taxable as a corporationSecured Debt; and (D) in each case as to such other matters as the Trustee or any Holder may reasonably requestrequire;
(ve) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(vif) the Issuer Merging Entity shall have delivered notice to each Rating Agency, and the Merging Entity shall have delivered to the Trustee, the Hedge Counterparty Trustee and each Noteholder Holder an Officer’s 's certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer or conveyance and such supplemental indenture comply with this Section 7, Article VII and that all conditions precedent in this Section 7 Article VII relating to such transaction have been complied with and that such transaction will not (i) result in the Merging Entity or Successor Entity becoming subject to United States federal income taxation with respect to their net income or (ii) have a material adverse effect on the tax treatment of the Issuer or the tax consequences to the Holders of any Class of Obligations Outstanding at the time of issuance, as described in the Offering Circular under the heading "Certain U.S. Federal Income Tax Considerations," unless the Holders agree by unanimous consent that no adverse tax consequences will result therefrom to the IssuerMerging Entity, Successor Entity or Holders of the Hedge Counterparty or any NoteholderObligations (as compared to the tax consequences of not effecting the transaction); and
(viig) the Issuer Merging Entity shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither the Issuer nor the Co-Issuer nor (or, if applicable, the Collateral Successor Entity) will be required to register as an investment company under the Investment Company Act.
(b) The Co-Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless:
(i) the Co-Issuer shall be the surviving entity, or the Person (if other than the Co-Issuer) formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes and the performance of every covenant of this Indenture on the part of the Co-Issuer to be performed or observed, all as provided herein;
(ii) each Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transaction shall have consented to such consolidation, merger, transfer or conveyance;
(iii) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have agreed with the Trustee (A) to observe the same legal requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Co-Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(iv) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have delivered to the Trustee and each Rating Agency an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause (b)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and such other matters as the Trustee may reasonably request;
(v) immediately after giving effect to such transaction, no Default shall have occurred and be continuing;
(vi) the Co-Issuer shall have delivered to the Trustee, the Hedge Counterparty and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Section 7 and that all conditions precedent in this Section 7 provided for relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Co-Issuer, the Hedge Counterparty or any Noteholder;
(vii) the Co-Issuer shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither Co-Issuer will be required to register as an investment company under the Investment Company Act; and
(viii) after giving effect to such transaction, the outstanding stock of the Co-Issuer will not be beneficially owned by any Person other than the Issuer.
Appears in 1 contract
Samples: Indenture (Fifth Street Senior Floating Rate Corp.)
Co-Issuers May Consolidate, etc., Only on Certain Terms. Neither the Issuer nor the Co-Issuer (athe "Merging Entity") The Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless permitted by Cayman Islands law (in the case of the Issuer) or United States and Delaware law (in the case of the Co-Issuer) and unless:
(ia) the Issuer Merging Entity shall be the surviving entitycorporation, or the Person (if other than the IssuerMerging Entity) formed by such consolidation or into which the Issuer Merging Entity is merged or to which all or substantially all of the assets of the Issuer Merging Entity are transferred or conveyed (the "Successor Entity") (A) if the Merging Entity is the Issuer, shall be an exempted a company incorporated and existing under the laws of the Cayman Islands or such other jurisdiction outside the United States as may be approved by a Majority of each Class the Controlling Class; provided that no such approval shall be required in connection with any such transaction undertaken solely to effect a change in the jurisdiction of Notes and the Hedge Counterpartyincorporation pursuant to Section 7.4, and (B) in any case shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the Hedge Counterparty Trustee and each NoteholderHolder, the due and punctual payment of the principal of and interest and the Commitment Fee on all Secured Notes issued by the Merging Entity and the performance and observance of every covenant of this Indenture and the Hedge Agreements on the its part of the Issuer to be performed or observed, all as provided herein;
(iib) each the Trustee shall have received notice of such consolidation or merger and shall have distributed copies of such notice to the Rating Agency Agencies as soon as reasonably practicable and in any case no less than five days after receipt of such notice of such merger or consolidation, and the Trustee shall have received written notification of such consolidation, merger, transfer or conveyance and confirmation from each Rating Agency that the Rating Condition shall have been satisfied ratings issued with respect to the Secured Notes then rated by such Rating Agency shall not be reduced or withdrawn as a result of the consummation of such transaction;
(iiic) if the Issuer Merging Entity is not the surviving entitycorporation, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed Successor Entity shall have agreed with the Trustee (Ai) to observe the same legal requirements for the recognition of such formed or surviving entity corporation as a legal entity separate and apart from any of its Affiliates as are applicable to the Issuer Merging Entity with respect to its Affiliates and (Bii) not to consolidate or merge with or into any other Person or transfer or convey the Collateral Assets or all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(ivd) if the Issuer Merging Entity is not the surviving entitycorporation, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed Successor Entity shall have delivered to the Trustee and each the Rating Agency Agencies an Officer’s 's certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause subsection (a)(ia) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ ' rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding Proceeding in equity or at law); if the Merging Entity is the Issuer, that, immediately following the event that which causes such Person Successor Entity to become the successor to the Issuer, (Ai) such Person Successor Entity has good and marketable title, free and clear of any lien, security interest or charge, other than the lien and security interest of this Indenture, to the Collateral; Assets securing all of the Notes, and (Bii) the Trustee continues to have a valid perfected first priority security interest in the Collateral Assets securing all of the Secured Notes; (C) such Person has received an Opinion of Counsel and in each case as to the effect that such Person will not be classified for U.S. federal income tax purposes as an association or publicly traded partnership taxable as a corporation; and (D) such other matters as the Trustee or any Noteholder may reasonably requestrequire; provided that nothing in this clause shall imply or impose a duty on the Trustee to require such other documents;
(ve) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(vif) the Issuer Merging Entity shall have delivered notice to the Rating Agencies, and the Merging Entity shall have delivered to the Trustee, the Hedge Counterparty Trustee and each Noteholder an Officer’s 's certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer or conveyance and such supplemental indenture comply with this Section 7, Article VII and that all conditions precedent in this Section 7 Article VII relating to such transaction have been complied with and that no adverse such transaction will not (1) result in the Merging Entity and Successor Entity becoming subject to United States federal income taxation with respect to their net income, (2) result in the Merging Entity and Successor Entity being treated as being engaged in a trade or business within the United States or (3) adversely affect the characterization of the Secured Notes as debt for United States federal income tax consequences will result therefrom to the Issuer, the Hedge Counterparty or any Noteholder; andpurposes;
(viig) the Issuer Merging Entity shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither Co-Issuer nor the Collateral will be required to register as an investment company under the Investment Company Act.
(b) The Co-Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless:
(i) the Co-Issuer shall be the surviving entity, or the Person (if other than the Co-Issuer) formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall expressly assumeIssuers (or, by an indenture supplemental hereto, executed and delivered to the Trusteeif applicable, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes and the performance of every covenant of this Indenture on the part of the Co-Issuer to be performed or observed, all as provided herein;
(iiSuccessor Entity) each Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transaction shall have consented to such consolidation, merger, transfer or conveyance;
(iii) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have agreed with the Trustee (A) to observe the same legal requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Co-Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(iv) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have delivered to the Trustee and each Rating Agency an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause (b)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and such other matters as the Trustee may reasonably request;
(v) immediately after giving effect to such transaction, no Default shall have occurred and be continuing;
(vi) the Co-Issuer shall have delivered to the Trustee, the Hedge Counterparty and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Section 7 and that all conditions precedent in this Section 7 provided for relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Co-Issuer, the Hedge Counterparty or any Noteholder;
(vii) the Co-Issuer shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither Co-Issuer will be required to register as an investment company under the Investment Company Act; and
(viiih) after giving effect to such transaction, the outstanding stock (other than the Subordinated Notes) of the Co-Issuer Merging Entity (or, if applicable, the Successor Entity) will not be beneficially owned within the meaning of the Investment Company Act by any Person other than the IssuerU.S. Person.
Appears in 1 contract
Samples: Indenture (JMP Group LLC)
Co-Issuers May Consolidate, etc., Only on Certain Terms. Neither the Issuer nor the Co-Issuer (athe "Merging Entity") The Issuer shall not consolidate or merge with or into any other Person or or, except as permitted under this Indenture, transfer or convey all or substantially all of its assets to any Person, unless permitted by Cayman Islands law (in the case of the Issuer) or United States and Delaware law (in the case of the Co-Issuer) and unless:
(ia) the Issuer Merging Entity shall be the surviving entitycorporation, or the Person (if other than the IssuerMerging Entity) formed by such consolidation or into which the Issuer Merging Entity is merged or to which all or substantially all of the assets of the Issuer Merging Entity are transferred or conveyed (the "Successor Entity") (A) if the Merging Entity is the Issuer, shall be an exempted a company incorporated and existing under the laws of the Cayman Islands or such other jurisdiction outside the United States as may be approved by a Majority of each the Controlling Class provided that no such approval shall be required in connection with any such transaction undertaken solely to effect a change in the jurisdiction of Notes and the Hedge Counterpartyincorporation pursuant to Section 7.4, and (B) in any case shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the Hedge Counterparty Trustee and each NoteholderHolder, the due and punctual payment of the principal of and interest and the Commitment Fee on all Secured Notes and the performance and observance of every covenant of this Indenture and the Hedge Agreements on the its part of the Issuer to be performed or observed, all as provided herein;
(iib) each the Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transactionconsolidation or merger;
(iiic) if the Issuer Merging Entity is not the surviving entitySuccessor Entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed Successor Entity shall have agreed with the Trustee (Ai) to observe the same legal requirements for the recognition of such formed or surviving entity corporation as a legal entity separate and apart from any of its Affiliates as are applicable to the Issuer Merging Entity with respect to its Affiliates and (Bii) not to consolidate or merge with or into any other Person or transfer or convey the Collateral Assets or all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(ivd) if the Issuer Merging Entity is not the surviving entitySuccessor Entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed Successor Entity shall have delivered to the Trustee Trustee, the Collateral Manager and the Issuer (and, subject to Section 14.3(c), the Issuer shall have delivered to each Rating Agency then rating a Class of Rated Notes) an Officer’s 's certificate and an Opinion of Counsel each stating that such Person shall be is duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause subsection (a)(ia) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ ' rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding Proceeding in equity or at law); if the Merging Entity is the Issuer, that, immediately following the event that which causes such Person Successor Entity to become the successor to the Issuer, (Ai) such Person Successor Entity has good and marketable title, free and clear of any lien, security interest or charge, other than the lien and security interest of this IndentureIndenture and any other Permitted Lien, to the Collateral; Assets securing all of the Notes and (Bii) the Trustee continues to have a valid perfected first priority security interest in the Collateral Assets securing all of the Secured Notes; (C) such Person has received an Opinion of Counsel and in each case as to the effect that such Person will not be classified for U.S. federal income tax purposes as an association or publicly traded partnership taxable as a corporation; and (D) such other matters as the Trustee or any Noteholder may reasonably requestrequire; provided that nothing in this clause shall imply or impose a duty on the Trustee to require such other documents;
(ve) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(vif) the Merging Entity shall have notified the Collateral Manager and the Issuer (and, subject to Section 14.3(c), the Issuer shall have notified each Rating Agency then rating a Class of Rated Notes) of such consolidation, merger, transfer or conveyance and shall have delivered to the Trustee, the Hedge Counterparty Trustee and each Noteholder an Officer’s 's certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer or conveyance and such supplemental indenture comply with this Section 7, Article VII and that all conditions precedent in this Section 7 Article VII relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Issuer, the Hedge Counterparty or any Noteholder; andwith;
(viig) the Issuer Merging Entity shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither of the Co-Issuer nor Issuers (or, if applicable, the Collateral Successor Entity) will be required to register as an investment company under the Investment Company Act.
(b) The Co-Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless:
(i) the Co-Issuer shall be the surviving entity, or the Person (if other than the Co-Issuer) formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes and the performance of every covenant of this Indenture on the part of the Co-Issuer to be performed or observed, all as provided herein;
(ii) each Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transaction shall have consented to such consolidation, merger, transfer or conveyance;
(iii) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have agreed with the Trustee (A) to observe the same legal requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Co-Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(iv) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have delivered to the Trustee and each Rating Agency an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause (b)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and such other matters as the Trustee may reasonably request;
(v) immediately after giving effect to such transaction, no Default shall have occurred and be continuing;
(vi) the Co-Issuer shall have delivered to the Trustee, the Hedge Counterparty and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Section 7 and that all conditions precedent in this Section 7 provided for relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Co-Issuer, the Hedge Counterparty or any Noteholder;
(vii) the Co-Issuer shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither Co-Issuer will be required to register as an investment company under the Investment Company Act; and
(viiih) after giving effect to such transaction, the outstanding stock of the Co-Issuer Merging Entity (or, if applicable, the Successor Entity) will not be beneficially owned within the meaning of the Investment Company Act by any Person other than U.S. person; and
(i) the Issuerfees, costs and expenses of the Trustee (including any reasonable legal fees and expenses) associated with the matters addressed in this Section 7.10 shall have been paid by the Merging Entity (or, if applicable, the Successor Entity) or otherwise provided for to the satisfaction of the Trustee.
Appears in 1 contract
Samples: Indenture (Garrison Capital Inc.)
Co-Issuers May Consolidate, etc., Only on Certain Terms. (a) The Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless permitted by Cayman Islands law and unless:
(i) the Issuer shall be the surviving entitycorporation, or the Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed shall (A) be an exempted a company incorporated and existing under the laws of the Cayman Islands or such other jurisdiction outside the United States as may be approved by the Holders of a Majority of the Preferred Shares and each Class Hedge Counterparty; provided that no such approval shall be required in connection with any such transaction undertaken solely to effect a change in the jurisdiction of incorporation pursuant to Section 7.4, and (B) expressly assume all of the Issuer’s obligations under the Notes and all Transaction Documents to which the Hedge Counterparty, and shall expressly assumeIssuer is a party, by an indenture supplemental heretohereto and any other agreements necessary for the purpose of assuming such obligations, executed and delivered to the Trustee, the Hedge Counterparty and Preferred Shares Paying Agent, each Noteholder, the due and punctual payment each Holder of the principal of and interest a Preferred Share, and the Commitment Fee on all Notes and the performance of every covenant of this Indenture and the Hedge Agreements on the part of the Issuer to be performed or observed, all as provided hereinCollateral Manager;
(ii) each the Rating Agency Agencies shall have received written notification been notified of such consolidation, merger, transfer consolidation or conveyance merger and the Rating Agency Condition shall have has been satisfied with respect to the consummation of such transactionmet;
(iii) if the Issuer is not the surviving entitycorporation, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed shall have agreed with the Trustee (A) to observe the same legal requirements for the recognition of such formed or surviving entity corporation as a legal entity separate and apart from any of its Affiliates as are applicable to the Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or transfer or convey the Collateral or all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(iv) if the Issuer is not the surviving entitycorporation, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed shall have delivered to the Trustee Trustee, the Preferred Shares Paying Agent, each Hedge Counterparty and each the Rating Agency Agencies an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause subsection (a)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); that, immediately following the event that which causes such Person to become the successor to the Issuer, (A) such Person has good and marketable title, free and clear of any lien, security interest or charge, other than the lien and security interest of this Indenture, to the Collateral; Collateral securing, in the case of a consolidation or merger of the Issuer, all of the Notes and the obligations owed to the Secured Parties, or, in the case of any transfer or conveyance of the Collateral securing any of the Notes, such Notes and obligations owed to the Secured Parties, (B) the Trustee continues to have a valid perfected first priority security interest in the Collateral securing securing, in the case of a consolidation or merger of the Issuer, all of the Notes and the obligations owed to the Secured Parties, or, in the case of any transfer or conveyance of the Collateral securing any of the Notes; , such Notes and obligations owed to the Secured Parties and (C) such Person has received an Opinion of Counsel to the effect that such Person will not be classified for U.S. federal income tax purposes as an association or publicly traded partnership taxable as a corporation; and (D) such other matters as the Trustee or any Noteholder may reasonably requestrequire;
(v) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(vi) the Issuer shall have notified the Rating Agencies and each Hedge Counterparty of such consolidation, merger, transfer or conveyance and shall have delivered to the Trustee, the Hedge Counterparty Trustee and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer or conveyance and such supplemental indenture comply with this Section 7, Article 7 and that all conditions precedent in this Section Article 7 relating provided for in relation to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Issuer, the Hedge Counterparty or any Noteholder; andwith;
(vii) the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither of the Co-Issuer nor the Collateral Issuers will be required to register as an investment company under the Investment Company Act; and
(viii) the Issuer has received advice from Xxxxxxxxxx, Xxxxxxxxxx & Xxxx LLP or an opinion of other nationally recognized U.S. tax counsel experienced in such matters that the Issuer or the Person referred to in clause (a) will not (a) fail to be treated as a Qualified REIT Subsidiary or (b) be treated as engaged in a U.S. trade or business or otherwise subject to U.S. federal income tax on a net income tax basis.
(b) The Co-Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless:
(i) the Co-Issuer shall be the surviving entitycorporation, or the Person (if other than the Co-Issuer) formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall expressly assumeassume all of the Co-Issuer’s obligations under the Notes and all Transaction Documents to which the Co-Issuer is a party, by an indenture supplemental hereto, executed and delivered to the Trustee, the due and punctual payment Preferred Shares Paying Agent, each Noteholder, each Holder of the principal of and interest a Preferred Share, and the Commitment Fee on all Notes and the performance of every covenant of this Indenture on the part of the Co-Issuer to be performed or observed, all as provided hereinCollateral Manager;
(ii) each the Rating Agency Agencies shall have received written notification been notified of such consolidation, merger, transfer consolidation or conveyance merger and the Rating Agency Condition shall have has been satisfied with respect to the consummation of such transaction shall have consented to such consolidation, merger, transfer or conveyancemet;
(iii) if the Co-Issuer is not the surviving entitycorporation, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have agreed with the Trustee (A) to observe the same legal requirements for the recognition of such formed or surviving entity corporation as a legal entity separate and apart from any of its Affiliates as are applicable to the Co-Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(iv) if the Co-Issuer is not the surviving entitycorporation, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall notify and have delivered to the Trustee Trustee, the Preferred Shares Paying Agent, each Hedge Counterparty and each the Rating Agency Agencies an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause clause (b)(ii) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; and that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and such other matters as the Trustee or any Senior Noteholder may reasonably requestrequire;
(v) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(vi) the Co-Issuer shall have notified the Rating Agencies of such consolidation, merger, transfer or conveyance and shall have delivered to the Trustee, the each Noteholder, each Holder of a Preferred Share and each Hedge Counterparty and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Section Article 7 and that all conditions precedent in this Section Article 7 provided for relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Co-Issuer, the Hedge Counterparty or any Noteholder;with; and
(vii) the Co-Issuer shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither of the Co-Issuer Issuers will be required to register as an investment company under the Investment Company Act; and
(viii) after giving effect to such transaction, the outstanding stock of the Co-Issuer will not be beneficially owned by any Person other than the Issuer.
Appears in 1 contract
Samples: Indenture (CBRE Realty Finance Inc)
Co-Issuers May Consolidate, etc., Only on Certain Terms. Neither the Issuer nor the Co-Issuer (athe “Merging Entity”) The Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless permitted by Cayman Islands law (in the case of the Issuer) or United States and Delaware law (in the case of the Co-Issuer) and unless:
(ia) the Issuer Merging Entity shall be the surviving entitycorporation, or the Person (if other than the IssuerMerging Entity) formed by such consolidation or into which the Issuer Merging Entity is merged or to which all or substantially all of the assets of the Issuer Merging Entity are transferred or conveyed (the “Successor Entity”) (A) if the Merging Entity is the Issuer, shall be an exempted a company incorporated organized and existing under the laws of the Cayman Islands or such other jurisdiction outside the United States as may be approved by a Majority of each the Controlling Class provided that no such approval shall be required in connection with any such transaction undertaken solely to effect a change in the jurisdiction of Notes and the Hedge Counterpartyincorporation pursuant to Section 7.4, and (B) in any case shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the Hedge Counterparty Trustee and each NoteholderHolder, the due and punctual payment of the principal of and interest and the Commitment Fee on all Secured Notes and the performance and observance of every covenant of this Indenture and the Hedge Agreements on the its part of the Issuer to be performed or observed, all as provided herein;
(iib) each Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the S&P Rating Condition shall have been satisfied with respect to the consummation of such transactionconsolidation or merger;
(iiic) if the Issuer Merging Entity is not the surviving entitySuccessor Entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed Successor Entity shall have agreed with the Trustee (Ai) to observe the same legal requirements for the recognition of such formed or surviving entity corporation as a legal entity separate and apart from any of its Affiliates as are applicable to the Issuer Merging Entity with respect to its Affiliates and (Bii) not to consolidate or merge with or into any other Person or transfer or convey the Collateral Assets or all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(ivd) if the Issuer Merging Entity is not the surviving entitySuccessor Entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed Successor Entity shall have delivered to the Trustee Trustee, the Collateral Manager and each the Issuer (and, subject to Section 14.3(c), the Issuer shall have delivered to the Rating Agency then rating a Class of Secured Notes) an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be is duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause subsection (a)(ia) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding Proceeding in equity or at law); if the Merging Entity is the Issuer, that, immediately following the event that which causes such Person Successor Entity to become the successor to the Issuer, (Ai) such Person Successor Entity has good and marketable title, free and clear of any lien, security interest or charge, other than the lien and security interest of this IndentureIndenture and any other Permitted Lien, to the Collateral; Assets securing all of the Notes and (Bii) the Trustee continues to have a valid perfected first priority security interest in the Collateral Assets securing all of the Secured Notes; (C) such Person has received an Opinion of Counsel and in each case as to the effect that such Person will not be classified for U.S. federal income tax purposes as an association or publicly traded partnership taxable as a corporation; and (D) such other matters as the Trustee or any Noteholder may reasonably requestrequire; provided that nothing in this clause shall imply or impose a duty on the Trustee to require such other documents;
(ve) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(vif) the Merging Entity shall have notified the Collateral Manager and the Issuer (and, subject to Section 14.3(c), the Issuer shall have notified the Rating Agency then rating a Class of Secured Notes) of such consolidation, merger, transfer or conveyance and shall have delivered to the Trustee, the Hedge Counterparty Trustee and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer or conveyance and such supplemental indenture comply with this Section 7, Article VII and that all conditions precedent in this Section 7 Article VII relating to such transaction have been complied with and that no such transaction will not (1) result in the Issuer (or, if applicable, the Successor Entity) becoming subject to U.S. federal income tax with respect to its net income or to any withholding tax liability under Section 1446 of the Code or (2) have a material adverse effect on the tax treatment of the Issuer or the tax consequences will result therefrom to the IssuerHolders of any Class of Notes Outstanding at the time of such consolidation, the Hedge Counterparty merger, transfer or any Noteholder; andconveyance;
(viig) the Issuer Merging Entity shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither of the Co-Issuer nor Issuers (or, if applicable, the Collateral Successor Entity) will be required to register as an investment company under the Investment Company Act.
(b) The Co-Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless:
(i) the Co-Issuer shall be the surviving entity, or the Person (if other than the Co-Issuer) formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes and the performance of every covenant of this Indenture on the part of the Co-Issuer to be performed or observed, all as provided herein;
(ii) each Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transaction shall have consented to such consolidation, merger, transfer or conveyance;
(iii) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have agreed with the Trustee (A) to observe the same legal requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Co-Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(iv) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have delivered to the Trustee and each Rating Agency an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause (b)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and such other matters as the Trustee may reasonably request;
(v) immediately after giving effect to such transaction, no Default shall have occurred and be continuing;
(vi) the Co-Issuer shall have delivered to the Trustee, the Hedge Counterparty and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Section 7 and that all conditions precedent in this Section 7 provided for relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Co-Issuer, the Hedge Counterparty or any Noteholder;
(vii) the Co-Issuer shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither Co-Issuer will be required to register as an investment company under the Investment Company Act; and
(viiih) after giving effect to such transaction, the outstanding stock of the Co-Issuer Merging Entity (or, if applicable, the Successor Entity) will not be beneficially owned within the meaning of the Investment Company Act by any Person other than U.S. Person; and
(i) the Issuerfees, costs and expenses of the Trustee (including any reasonable legal fees and expenses) associated with the matters addressed in this Section 7.10 shall have been paid by the Merging Entity (or, if applicable, the Successor Entity) or otherwise provided for to the satisfaction of the Trustee.
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Co-Issuers May Consolidate, etc., Only on Certain Terms. Neither the Issuer nor the Co-Issuer (athe “Merging Entity”) The Issuer shall not consolidate or merge with or into any other Person or or, except as permitted under this Indenture, transfer or convey all or substantially all of its assets to any Person, unless permitted by Cayman IslandsJersey law (in the case of the Issuer) or United States and Delaware law (in the case of the Co-Issuer) and unless:
(ia) the Issuer Merging Entity shall be the surviving entitycorporation, or the Person (if other than the IssuerMerging Entity) formed by such consolidation or into which the Issuer Merging Entity is merged or to which all or substantially all of the assets of the Issuer Merging Entity are transferred or conveyed (the “Successor Entity”) (A) if the Merging Entity is the Issuer, shall be an exempted a company incorporated and existing under the laws of the Cayman Islands IslandsJersey or such other jurisdiction outside the United States as may be approved by a Majority of each Class the Controlling Class, provided that no such approval shall be required in connection with any such transaction undertaken solely to effect a change in the jurisdiction of Notes and the Hedge Counterpartyincorporation pursuant to Section 7.4, and (B) in any case shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the Hedge Counterparty Class A-1L Loan Agent and each NoteholderHolder, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes Secured NotesDebt and the performance and observance of every covenant of this Indenture and the Hedge Agreements Class A-1L Loan Agreement on the its part of the Issuer to be performed or observed, all as provided herein;
(iib) each the S&P Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transactionconsolidation or merger;
(iiic) if the Issuer Merging Entity is not the surviving entitySuccessor Entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed Successor Entity shall have agreed with the Trustee and the Class A-1L Loan Agent (Ai) to observe the same legal requirements for the recognition of such formed or surviving entity corporation as a legal entity separate and apart from any of its Affiliates as are applicable to the Issuer Merging Entity with respect to its Affiliates and (Bii) not to consolidate or merge with or into any other Person or transfer or convey the Collateral Assets or all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(ivd) if the Issuer Merging Entity is not the surviving entitySuccessor Entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred or conveyed Successor Entity shall have delivered to the Trustee Trustee, the Class A-1L Loan Agent, the Collateral Manager, and each the Issuer (and, subject to Section 14.3(c), the Issuer shall have delivered to the Rating Agency so long as it is rating a Class of Secured NotesDebt) an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be is duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause subsection (a)(ia) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding Proceeding in equity or at law); if the Merging Entity is the Issuer, that, immediately following the event that which causes such Person Successor Entity to become the successor to the Issuer, (Ai) such Person Successor Entity has good and marketable title, free and clear of any lien, security interest or charge, other than the lien and security interest of this IndentureIndenture and any other Permitted Lien, to the Collateral; Assets securing the Secured NotesDebt and (Bii) the Trustee continues to have a valid perfected first priority security interest in the Collateral Assets securing all of the Notes; (C) such Person has received an Opinion of Counsel to the effect that such Person will not be classified for U.S. federal income tax purposes as an association or publicly traded partnership taxable as a corporationSecured NotesDebt ; and (D) in each case as to such other matters as the Trustee or any Holder may reasonably requestrequire; provided that nothing in this clause shall imply or impose a duty on the Trustee to require such other documents;
(ve) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(vif) the Merging Entity shall have notified the Collateral Manager, and the Issuer (and, subject to Section 14.3(c), the Issuer shall have notified the Rating Agency so long as it is rating a Class of Secured NotesDebt) of such consolidation, merger, transfer or conveyance and shall have delivered to the Trustee, the Hedge Counterparty Class A-1L Loan Agent and each Noteholder Holder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer or conveyance and such supplemental indenture comply with this Section 7, Article VII and that all conditions precedent in this Section 7 Article VII relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Issuer, the Hedge Counterparty or any Noteholder; andwith;
(viig) the Issuer Merging Entity shall have delivered to the Trustee and the Class A-1L Loan Agent an Opinion of Counsel stating that after giving effect to such transaction, neither of the Co-Issuer nor Issuers (or, if applicable, the Collateral Successor Entity) will be required to register as an investment company under the Investment Company Act.
(b) The Co-Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless:
(i) the Co-Issuer shall be the surviving entity, or the Person (if other than the Co-Issuer) formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the due and punctual payment of the principal of and interest and the Commitment Fee on all Notes and the performance of every covenant of this Indenture on the part of the Co-Issuer to be performed or observed, all as provided herein;
(ii) each Rating Agency shall have received written notification of such consolidation, merger, transfer or conveyance and the Rating Condition shall have been satisfied with respect to the consummation of such transaction shall have consented to such consolidation, merger, transfer or conveyance;
(iii) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have agreed with the Trustee (A) to observe the same legal requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Co-Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any other Person except in accordance with the provisions of this Section 7.10;
(iv) if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred or conveyed shall have delivered to the Trustee and each Rating Agency an Officer’s certificate and an Opinion of Counsel each stating that such Person shall be duly organized, validly existing and (if applicable) in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in subclause (b)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and such other matters as the Trustee may reasonably request;
(v) immediately after giving effect to such transaction, no Default shall have occurred and be continuing;
(vi) the Co-Issuer shall have delivered to the Trustee, the Hedge Counterparty and each Noteholder an Officer’s certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Section 7 and that all conditions precedent in this Section 7 provided for relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Co-Issuer, the Hedge Counterparty or any Noteholder;
(vii) the Co-Issuer shall have delivered to the Trustee an Opinion of Counsel stating that after giving effect to such transaction, neither Co-Issuer will be required to register as an investment company under the Investment Company Act; and
(viiih) after giving effect to such transaction, the outstanding stock of the Co-Issuer Merging Entity (or, if applicable, the Successor Entity) will not be beneficially owned within the meaning of the Investment Company Act by any Person U.S. person;
(i) the fees, costs and expenses of the Trustee (including any reasonable legal fees and expenses) associated with the matters addressed in this Section 7.10 shall have been paid by the Merging Entity (or, if applicable, the Successor Entity) or otherwise provided for to the satisfaction of the Trustee; and
(j) after giving effect to such transaction, the Successor Entity is not treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or otherwise subject to U.S. federal income tax on a net basis (including any tax imposed under Section 1446 of the Code), other than by operation of Subchapter C of Chapter 63 of the IssuerCode.
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Samples: Supplemental Indenture (AB Private Credit Investors Corp)
