Consolidation, Merger, Sale of Assets. (a) the Issuer shall not consolidate or merge with or into any other Person, unless (i) the Person (if other than the Issuer) formed by or surviving such consolidation or merger shall be a Person organized and existing under the laws of the United States of America or any State and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent, in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each other Related Document on the part of the Issuer to be performed or observed, all as provided herein; (ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; (iii) the Rating Agency Condition shall have been satisfied with respect to such transaction; (iv) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken; (v) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (a)(iv) of this Section 1003 or that no such actions will be taken) each stating that such consolidation or merger and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and (vi) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such consolidation or merger at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such consolidation or merger and the Issuer or the Person (if other than the Issuer) formed by or surviving such consolidation or merger has a net worth, immediately after such consolidation or merger, that is (a) greater than zero and (b) not less than the net worth of the Issuer immediately prior to giving effect to such consolidation or merger. (b) The Issuer shall not convey or transfer all or substantially all of its properties or assets, including those included in the Trust Estate, to any Person (except as expressly permitted by the Indenture, the Security Agreement, the Repurchase Agreement or the Servicing Agreement), unless (i) the Person that acquires by conveyance or transfer the properties and assets of the Issuer shall (A) be a United States citizen or a Person organized and existing under the laws of the United States of America or any State, (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each Related Document on the part of the Issuer to be performed or observed, all as provided herein, (C) expressly agree by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of Holders of the Notes, (D) unless otherwise provided in such Supplemental Indenture, expressly agree to indemnify, defend and hold harmless the Issuer against and from any loss, liability or expense arising under or related to this Indenture and the Notes and (E) expressly agree by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with the Commission (and any other appropriate Person) required by the Exchange Act in connection with the Notes; (ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; (iii) the Rating Agency Condition shall have been satisfied with respect to such transaction; (iv) the Issuer shall have received an Opinion of Counsel which shall be delivered to and shall be satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing) to the effect that such transaction will not have any material adverse tax consequence to the Issuer, the Security Insurer or any Noteholder; (v) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken; (vi) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (b)(v) of this Section 1003 or that no such actions will be taken) each stating that such conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and (vii) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such conveyance or transfer of properties or assets at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such conveyance or transfer and the Person acquiring by conveyance or transfer the properties or assets of the Issuer has a net worth, immediately after such conveyance or transfer, that is (a) greater than zero and (b) not less than the net worth of the Issuer immediately prior to giving effect to such conveyance or transfer.
Appears in 1 contract
Samples: Indenture (Olympic Financial LTD)
Consolidation, Merger, Sale of Assets. (a) the Issuer The Borrower shall not not, in a single transaction or a series of related transactions, consolidate with or merge with or into any other PersonPerson or sell, unless
assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets to any Person or group of affiliated Persons, or permit any of its Subsidiaries to enter into any such transaction or transactions if such transaction or transactions, in the aggregate, would result in a sale, assignment, conveyance, transfer, lease or disposition of all or substantially all of the properties and assets of the Borrower and its Subsidiaries on a Consolidated basis to any other Person or group of affiliated Persons, unless at the time and after giving effect thereto (i) either (a) the Borrower shall be the continuing corporation or (b) the Person (if other than the IssuerBorrower) formed by or surviving such consolidation or merger into which the Borrower is merged or the Person which acquires by sale, assignment, conveyance, transfer, lease or disposition all or substantially all of the properties and assets of the Borrower and its Subsidiaries on a Consolidated basis (the "Surviving Entity") shall be a Person corporation duly organized and validly existing under the laws of the United States of America America, any state thereof or any State the District of Columbia and shall expressly assume, such Person assumes by an indenture a supplemental hereto, executed and delivered to the Trustee and the Agent, agreement in a form and substance reasonably satisfactory to the TrusteeFacility Manager, all the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment obligations of the principal of and interest on all Borrower under the Notes and the performance or observance of every agreement this Agreement, and covenant of this Indenture Agreement shall remain in full force and each other Related Document on the part of the Issuer to be performed or observed, all as provided herein;
effect; (ii) immediately before and immediately after giving effect to such transactiontransaction on a pro forma basis, no Default or Event of Default shall have occurred and be continuing;
; (iii) immediately before and immediately after giving effect to such transaction on a pro forma basis (on the Rating Agency Condition shall have been satisfied assumption that the transaction occurred on the first day of the four-quarter period immediately prior to the consummation of such transaction with the appropriate adjustments with respect to the transaction being included in such transaction;
pro forma calculation), the Borrower (or the Surviving Entity if the Borrower is not the continuing obligor under this Agreement) could incur $1.00 of additional Indebtedness pursuant to subsection 7.1 (other than Permitted Indebtedness); (iv) any action as each Guarantor unless it is necessary the other party to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement transactions described above, shall have been taken;
by supplemental agreement confirming that its Guarantee shall apply to such Person's obligations under this Agreement and the Notes; (v) if any of the Issuer property or assets of the Borrower or any of its Subsidiaries would thereupon become subject to any Lien, the provisions of subsection 7.4 are complied with; and (vi) the Borrower or the Surviving Entity shall have delivered delivered, or caused to be delivered, to the Trustee Facility Manager, in form and substance reasonably satisfactory to the Facility Manager, an officers' certificate and an opinion of counsel, each to the effect that such consolidation, merger, transfer, sale, assignment, lease or other transaction and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (a)(iv) of this Section 1003 or that no such actions will be taken) each stating that such consolidation or merger and such supplemental indenture agreement in respect thereto comply with this Article the provisions described herein and that all conditions precedent herein provided for relating to such transaction have been complied with with. (including any filing required by the Exchange Act); and
(viTERM LOAN AGREEMENT) so long as no Insurer Default Each Guarantor shall have occurred and be continuingnot, the Issuer shall have given the Security Insurer written notice of such consolidation or merger at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such consolidation or merger and the Issuer Borrower will not permit a Guarantor to, in a single transaction or the Person series of related transactions, merge or consolidate with or into any other corporation (if other than the IssuerBorrower or any other Guarantor) formed by or surviving such consolidation other entity, or merger has a net worthsell, immediately after such consolidation assign, convey, transfer, lease or merger, that is (a) greater than zero and (b) not less than the net worth otherwise dispose of the Issuer immediately prior to giving effect to such consolidation or merger.
(b) The Issuer shall not convey or transfer all or substantially all of its properties or assets, including those included in the Trust Estate, and assets on a Consolidated basis to any Person entity (except as expressly permitted by other than the Indenture, Borrower or any other Guarantor) unless at the Security Agreement, the Repurchase Agreement or the Servicing Agreement), unless
time and after giving effect thereto: (i) either (a) such Guarantor shall be the Person that continuing corporation or (b) the entity (if other than such Guarantor) formed by such consolidation or into which such Guarantor is merged or the entity which acquires by conveyance sale, assignment, conveyance, transfer, lease or transfer disposition the properties and assets of the Issuer such Guarantor shall (A) be a United States citizen or a Person corporation duly organized and validly existing under the laws of the United States States, any state thereof or the District of America or any State, (B) Columbia and shall expressly assume, assume by an indenture a supplemental heretoagreement, executed and delivered to the Trustee and the Agent Facility Manager, in a form and substance reasonably satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each Related Document on the part of the Issuer to be performed or observedFacility Manager, all as provided herein, (C) expressly agree by means the obligations of such supplemental indenture that all rightGuarantor under the Subsidiaries Guarantee, title and interest so conveyed or transferred shall be subject and subordinate to the rights of Holders of the Notes, (D) unless otherwise provided in such Supplemental Indenture, expressly agree to indemnify, defend and hold harmless the Issuer against and from any loss, liability or expense arising under or related to this Indenture and the Notes and (E) expressly agree by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with the Commission (and any other appropriate Person) required by the Exchange Act in connection with the Notes;
this Agreement; (ii) immediately before and immediately after giving effect to such transactiontransaction on a pro forma basis, no Default or Event of Default shall have occurred and be continuing;
; and (iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel which shall be delivered to and shall be satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing) to the effect that such transaction will not have any material adverse tax consequence to the Issuer, the Security Insurer or any Noteholder;
(v) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(vi) the Issuer Guarantor shall have delivered to the Trustee Facility Manager, in form and substance reasonably satisfactory to the Agent Facility Manager, an Officersofficers' Certificate certificate and an Opinion opinion of Counsel (which shall describe the actions taken as required by clause (b)(v) of this Section 1003 or that no such actions will be taken) counsel, each stating that such conveyance consolidation, merger, sale, assignment, conveyance, transfer, lease or transfer disposition and such supplemental indenture agreement comply with this Article Agreement, and that thereafter all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and
(vii) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such conveyance or transfer of properties or assets at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval obligations of the Security Insurer predecessor shall terminate. Notwithstanding the foregoing, in the event of such conveyance a sale or transfer and other disposition of all or substantially all of the Person acquiring by conveyance or transfer the properties or assets of the Issuer has Guarantor or any other Guarantor, by way of merger, consolidation or otherwise, or a net worth, immediately after such conveyance sale or transfer, that is (a) greater than zero and (b) not less than the net worth other disposition of all of the Issuer capital stock of such Guarantor, then such Guarantor (in the event of a sale or other disposition, by way of such merger, consolidation or otherwise, of all of the capital stock of such Guarantor) or the corporation acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Guarantor) shall be released and relieved of any obligations under its Guarantee. In the event of any transaction described in and complying with the conditions listed in the immediately prior to giving effect to preceding paragraphs in which the Borrower or any Guarantor is not the continuing corporation, the successor Person formed or remaining shall succeed to, and be substituted for, and may exercise every right and power of, the Borrower or such conveyance Guarantor, as the case may be, and the Borrower or transfersuch Guarantor, as the case may be, would be discharged from all obligations and covenants under this Agreement, the Notes and such Guarantee, as the case may be; PROVIDED that in the case of a transfer by lease, the predecessor shall not be released from the payment of principal and interest on the Notes or such Guarantee, as the case may be.
Appears in 1 contract
Consolidation, Merger, Sale of Assets. Following the Rating Event Date:
(a) So long as any of the Issuer Securities are outstanding, the Company shall not consolidate with or merge with or into any other Person, or convey, transfer or lease its consolidated properties and assets substantially as an entirety to any Person, or permit any Person to merge into or consolidate with the Company, unless
: (i) the Person (if other than Company is the Issuer) formed by surviving or continuing corporation or the surviving such consolidation or merger shall be con tinuing corporation or purchaser or lessee is a Person organized and existing corporation incorporated under the laws of the United States of America or any State and shall expressly assumeAmerica, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent, in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment one of the principal States thereof or the District of Columbia or Canada and interest on all Notes assumes the Company's obligations under the Securities and under the performance or observance of every agreement and covenant of this Indenture and each other Related Document on the part of the Issuer to be performed or observed, all as provided herein;
(ii) immediately before and after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(v) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (a)(iv) of this Section 1003 or that no such actions will be taken) each stating that such consolidation or merger and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and
(vi) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such consolidation or merger at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such consolidation or merger and the Issuer or the Person (if other than the Issuer) formed by or surviving such consolidation or merger has a net worth, immediately after such consolidation or merger, that is (a) greater than zero and (b) not less than the net worth of the Issuer immediately prior to giving effect to such consolidation or merger.
(b) The Issuer shall not convey or transfer all or substantially all Except for a sale of its properties or assets, including those included in the Trust Estate, to any Person (except as expressly permitted by the Indenture, the Security Agreement, the Repurchase Agreement or the Servicing Agreement), unless
(i) the Person that acquires by conveyance or transfer the consolidated properties and assets of the Issuer shall Company substantially as an entirety pursuant to subsection (Aa) be a United States citizen or a Person organized above, and existing under the laws of the United States of America or any State, (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each Related Document on the part of the Issuer to be performed or observed, all as provided herein, (C) expressly agree by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of Holders of the Notes, (D) unless otherwise provided in such Supplemental Indenture, expressly agree to indemnify, defend and hold harmless the Issuer against and from any loss, liability or expense arising under or related to this Indenture and the Notes and (E) expressly agree by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with the Commission (and any other appropriate Person) required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel which shall be delivered to and shall be satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing) to the effect that such transaction will not have any material adverse tax consequence to the Issuer, the Security Insurer or any Noteholder;
(v) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(vi) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (b)(v) of this Section 1003 or that no such actions will be taken) each stating that such conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and
(vii) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such conveyance or transfer of than properties or assets at least 20 Business Days prior required to be sold to conform with laws or governmental regulations, the consummation Company shall not, directly or indirectly, sell or otherwise dispose of such action and shall have received the prior written approval any of the Security Insurer of such conveyance or transfer and the Person acquiring by conveyance or transfer the its consolidated properties or assets (other than short-term, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset sales) if on a pro forma basis, the aggregate net book value of all such sales during the most recent 12-month period would exceed 10% of Consolidated Net Tangible Assets computed as of the Issuer has a net worthend of the most recent quarter preceding such sale; provided, immediately after such conveyance or transferhowever, that is (a) greater than zero and (b) not less than any such sales shall be disregarded for purposes of this 10% limitation if the net worth proceeds are invested in properties or assets in similar or related lines of business of the Issuer immediately prior Company and its Subsidiaries and, provided further, that the Company may sell or otherwise dispose of consolidated properties and assets in excess of such 10% limitation if the net proceeds from such sales or dispositions, which are not reinvested as provided above, are retained by the Company as cash or Cash Equivalents or used to giving effect retire Indebtedness of the Company (other than Indebtedness which is subordinated to such conveyance or transferthe Securities) and its Subsidiaries.
Appears in 1 contract
Consolidation, Merger, Sale of Assets. (a) the Issuer shall The Borrower will not, and will not consolidate permit any of its Subsidiaries to, directly or merge with or into any other Person, unlessindirectly,
(i) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that:
(a) any Subsidiary of the Person Borrower may consolidate with or merge into the Borrower or a Wholly-Owned Subsidiary of the Borrower if the Borrower or a Wholly-Owned Subsidiary of the Borrower, as the case may be, shall be the surviving Person; and
(if b) any entity (other than a Subsidiary of the IssuerBorrower) formed by may consolidate with or surviving such consolidation merge into the Borrower or merger a Subsidiary if the Borrower or a Subsidiary of the Borrower, as the case may be, shall be a the surviving Person organized and existing under the laws of the United States of America or any State and shall expressly assumeif, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent, in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each other Related Document on the part of the Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, (i) the Borrower and its Subsidiaries (x) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Borrower most recently delivered pursuant to Section 7A.1, of less than the Consolidated Net Worth of the Borrower immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, and (y) could incur at least $1.00 of additional Indebtedness in compliance with Section 7B.1 and clause (xiv) of Section 7B.2, (ii) substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole, shall be located and substantially all of their business shall be conducted within the continental United States of America or Canada and (iii) no Default or Default, Event of Default or Noncompliance Event shall have occurred exist and be continuing;
(ii) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that any Subsidiary of the Borrower may sell, lease or otherwise dispose of all or substantially all its assets to the Borrower or to a Wholly-Owned Subsidiary of the Borrower; or
(iii) the Rating Agency Condition shall have been satisfied sell, lease, convey, abandon or otherwise dispose of (including, without limitation, in connection with respect to such transaction;
(iva Sale and Lease-Back Transaction) any action as is necessary to maintain the lien and security interest created of its assets (except in favor of the Collateral Agent by the Security Agreement shall have been taken;
(v) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required a transaction permitted by clause (a)(ivi)(a), (i)(b), (i)(c), (ii)(a) or (ii)(b) of this Section 1003 7B.7 or that no such actions will be takensales of inventory in the ordinary course of business consistent with past practice) each stating that such consolidation or merger and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including issue or sell Capital Stock of any filing required by the Exchange Act); and
(vi) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such consolidation or merger at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval Subsidiary of the Security Insurer Borrower, whether in a single transaction or a series of such consolidation or merger and the Issuer or the Person related transactions (if other than the Issuer) formed by or surviving such consolidation or merger has a net worth, immediately after such consolidation or merger, that is (a) greater than zero and (b) not less than the net worth each of the Issuer immediately prior to giving effect to such consolidation or merger.
(b) The Issuer shall not convey or transfer all or substantially all of its properties or assetsforegoing non-excepted transactions, including those included in the Trust Estate, to any Person (except as expressly permitted by the Indenture, the Security Agreement, the Repurchase Agreement or the Servicing Agreementan "Asset Sale"), unless:
(i) the Person that acquires by conveyance or transfer the properties and assets of the Issuer shall (A) be a United States citizen or a Person organized and existing under the laws of the United States of America or any State, (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each Related Document on the part of the Issuer to be performed or observed, all as provided herein, (C) expressly agree by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of Holders of the Notes, (D) unless otherwise provided in such Supplemental Indenture, expressly agree to indemnify, defend and hold harmless the Issuer against and from any loss, liability or expense arising under or related to this Indenture and the Notes and (E) expressly agree by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with the Commission (and any other appropriate Person) required by the Exchange Act in connection with the Notes;
(iia) immediately after giving effect to such transactionproposed disposition no Default, no Default or Event of Default or Noncompliance Event shall have occurred exist and be continuing, satisfaction of this requirement to be set forth in reasonable detail in an Officer's Certificate delivered to each holder of a Note at the time of such transaction in the case of any Asset Sale involving assets that generates EBITDA and such Asset Sale involves consideration of $250,000 or more;
(iiib) such sale or other disposition is for cash consideration or for consideration consisting of not less than 75% cash and not more than 25% interest-bearing promissory notes; provided, that the Rating Agency Condition 75% limitation referred to in this clause (b) shall have been satisfied with respect not apply to any Asset Sale consisting solely of a sale or other disposition of land and buildings for an interest bearing promissory note as long as the amount of such transactionpromissory note does not exceed $250,000;
(ivc) one of the following two conditions must be satisfied:
(i) (x) the Issuer shall have received an Opinion aggregate Net Proceeds of Counsel which shall be delivered all assets so disposed of (whether or not leased back) over the immediately preceding 12-month period does not exceed $3,000,000 and (y) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) from the Closing Date through the date of such disposition does not exceed $10,000,000; or
(ii) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with clause (x) of this clause (c)(ii)) exceeds the limitations determined pursuant to clauses (x) and shall be satisfactory to the Trustee(y) of clause (c)(i) of this Section 7B.7 (such excess amount being herein called "Excess Sale Proceeds"), the Agent and Borrower shall within 12 calendar months of the Security Insurer date on which such Net Proceeds exceeded any such limitation, cause an amount equal to such Excess Sale Proceeds to be applied (so long as no Insurer Default shall have occurred and be continuingx) to the effect that such transaction will not have any material adverse tax consequence acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business, or (y) to the Issuerextent not applied pursuant to the immediately preceding clause (x), to offer to make prepayments on the Security Insurer Notes pursuant to Section 4.2.3 hereto and, allocated on the basis specified for such prepayments in the definition of Allocable Proceeds, to offer to repay other Parity Debt (other than Indebtedness under Section 7B.2 (ii) or any Noteholder;that by its terms does not permit such offer to be made); and
(v) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(vid) the Issuer Borrower shall have delivered to the Trustee and Noteholders a Certificate of the Agent an Officers' Certificate and an Opinion Board of Counsel (which shall describe Directors of the actions taken as required by clause (b)(v) of this Section 1003 or that no such actions will be taken) each stating General Partner, certifying that such conveyance sale or other disposition is for fair value and is in the best interests of the Borrower. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required of assets or issuance or sale of Capital Stock by the Exchange Act); and
Borrower or any of its Subsidiaries to the Borrower or a Wholly-Owned Subsidiary of the Borrower, (vii2) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such conveyance or any transfer of properties assets or assets at least 20 Business Days prior issuance or sale of Capital Stock by the Borrower or any of its Subsidiaries to any Person in exchange for, or the Net Proceeds of which are applied within 12 months to the consummation purchase of, other assets used in a line of such action business permitted under Section 7B.8 and shall have received having a fair market value (as determined in good faith by the prior written approval Board of Directors of the Security Insurer of such conveyance or transfer and the Person acquiring by conveyance or transfer the properties or assets of the Issuer has a net worth, immediately after such conveyance or transfer, that is (a) greater than zero and (bGeneral Partner) not less than the net worth that of the Issuer immediately prior assets so transferred or Capital Stock so issued or sold and (3) any transfer of assets pursuant to giving effect to such conveyance or transferan Investment permitted by Section 7B.5.
Appears in 1 contract
Consolidation, Merger, Sale of Assets. (a) Nothing contained in this Indenture or in any of the Issuer Securities shall prevent any amalgamation, reconstruction, consolidation or merger of the Guarantor with or into any other Person (whether or not affiliated with the Guarantor), or successive amalgamations, reconstructions, consolidations or mergers in which the Guarantor or its successor or successors shall be a party or parties, or shall prevent any sale or conveyance of the property of the Guarantor as an entirety or substantially as an entirety, to any other Person (whether or not affiliated with the Guarantor) authorized to acquire and operate the same; provided, however, that the Person formed by such amalgamation, restructuring or consolidation, or into which the Guarantor shall merge, or which shall acquire such property is organized and validly existing under the laws of a State of the United States, the United Kingdom or another jurisdiction that is a member country of the Organization for Economic Cooperation and Development (or any successor thereto) and provided further that the Guarantor hereby covenants and agrees that, upon any such amalgamation, reconstruction, consolidation, merger, sale or conveyance, (i) the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Guarantor (including, if applicable, submission to jurisdiction), shall be expressly assumed by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee, by the Person formed by such amalgamation, reconstruction or consolidation, or into which the Guarantor shall have been merged, or by the Person which shall have acquired such property, and (ii) if the Person formed by such amalgamation, reconstruction or consolidation, or into which the Guarantor shall have been merged, or which shall have acquired such property, is resident for tax purposes other than in the United Kingdom (and, if such Person is, or is treated as, a “domestic corporation” for U.S. federal income tax purposes, such successor Person shall be treated as a “resident” of the United States for U.S. federal income tax purposes), such Person shall, in such supplemental indenture, agree that if any deduction or withholding for any present or future taxes,levies, imposts or other governmental charges whatsoever imposed, assessed, levied or collected by or for the account of the jurisdiction in which it is resident for tax purposes or any political subdivision or taxing authority thereof or therein shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by such successor Person under the Securities, such Person will (subject to compliance by the Holders of such Securities with any administrative requirements) pay such additional amounts as may be necessary in order that the net amounts paid to the Holders of the Securities or the Trustee under this Indenture or, as the case may be, pursuant to the Securities, after such deduction or withholding, shall be not less than the amounts specified in the Securities, to which such Holders or the Trustee are entitled had no such withholding or deduction been required; provided, however, that the successor Person shall not consolidate be required to make any payment of additional amounts for or merge on account of (i) any present or future tax, levy, impost or other governmental charge which would not have been so imposed, assessed, levied or collected but for the fact that the Holder of the relevant Security (or a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) is or has been a domiciliary, national or resident of, or is or has been engaged in a trade or business in, or maintains or has maintained a permanent establishment in, or is or has been physically present in, such jurisdiction or any political subdivision or taxing authority thereof or therein or otherwise has or has had some connection with such jurisdiction or any political subdivision or taxing authority thereof or therein other than the holding or ownership of the Security, or the collection of principal, premium or interest, if any, on, or the enforcement of, the Security, (ii) any present or future tax, levy, impost or other governmental charge which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date on which such payment became due or was provided for, whichever is later, (iii) any estate, inheritance, gift, sale, transfer, personal property or similar tax, levy, impost or other governmental charge, (iv) any present or future tax, levy, impost or other governmental charge which is payable otherwise than by deduction or withholding from payments on or in respect of the relevant Security, (v) any present or future tax, levy, impost or other governmental charge which would not have been so imposed, assessed, levied or collected but for the failure of the Holder or the beneficial owner of the relevant Security to comply with any certification, identification or other reporting requirements concerning the Holder’s or the beneficial owner’s nationality, residence, identity or connection with such jurisdiction or any political subdivision or taxing authority thereof or therein, if compliance is required by treaty or by statute, regulation or administrative practice of such jurisdiction or of any such political subdivision or taxing authority thereof or therein as a condition to relief or exemption from such tax, levy, impost or other governmental charge, (vi) any present or future tax, levy, impost or other governmental charge which the Holder would have been able to avoid by authorizing the paying agent to report information in accordance with the procedure laid down by the relevant tax authority or by producing, in the form requested by the relevant tax authority, a declaration, claim, certificate, document or other evidence establishing exemption therefrom, (vii) any present or future tax, levy, impost or other governmental charge which is required by FATCA, any current or future U.S. Treasury regulations or rulings promulgated thereunder, any IGA, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an IGA, or any agreement with the U.S. Internal Revenue Service under or with respect to FATCA, (viii) any present or future tax, levy, impost or other governmental charge which is imposed or withheld because the Holder of the Security is (1) considered a 10% shareholder (within the meaning of Sections 871(h)(3) or 881(c)(3) of the Code) of the issuer of the Security or (2) a controlled foreign corporation related (within the meaning of Section 864(d)(4) of the Code) to the issuer of the Security, (ix) any present or future tax, levy, impost or other governmental charge which is imposed because the Holder (1) is a bank purchasing the Security in the ordinary course of its lending business or (2) is a bank that is neither (A) buying the Security for investment purposes only nor (B) buying the Security for resale to a third party that either is not a bank or will hold the Security for investment purposes only, (x) any present or future tax, levy, impost or other governmental charge which is imposed, assessed, levied or collected in respect of a payment under or with respect to a Security to any Holder of the relevant Security that is a fiduciary, partnership or a person other than the sole beneficial owner of such payment or Security to the extent that the beneficiary or settlor with respect to the fiduciary, member of that partnership or beneficial owner would not have been entitled to the additional amounts or would not have been subject to such tax, levy, impost or charge had that beneficiary, settlor, member or beneficial owner been the actual Holder of such Security or (xi) any combination of clauses (i) through (x) above, and nor shall additional amounts be paid in the event that the obligation to pay additional amounts is the result of the issuance of definitive Registered Securities to a Holder of a Predecessor Security at such Holder’s request upon the occurrence of an Event of Default and at the time payment is made definitive Registered Securities have not been issued in exchange for the entire principal amount of the Predecessor Securities.
(b) If, upon any such amalgamation, reconstruction, consolidation or merger of the Guarantor with or into any other Person, unless
(i) the Person (if other than the Issuer) formed by or surviving such consolidation upon any sale or merger shall be a Person organized and existing under the laws conveyance of the United States property of America the Guarantor as an entirety or substantially as an entirety to any other Person, any Principal Property of the Guarantor or of any of its Restricted Subsidiaries or any State shares of stock or indebtedness of any such Restricted Subsidiary would thereupon become subject to any mortgage, pledge or lien which would be prohibited by Section 3.09, the Guarantor, prior to such amalgamation, reconstruction, consolidation, merger, sale or conveyance, will secure the Securities, equally and shall expressly assumeratably with any other obligations of the Guarantor then entitled thereto, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent, in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest a direct lien on all Notes such property equally and the performance ratably with all such mortgages, pledges or observance of every agreement and covenant of this Indenture and each other Related Document on the part of the Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(v) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (a)(iv) of this Section 1003 or that no such actions will be taken) each stating that such consolidation or merger and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and
(vi) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such consolidation or merger at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such consolidation or merger and the Issuer or the Person (if other than the Issuer) formed by or surviving such consolidation or merger has a net worth, immediately after such consolidation or merger, that is (a) greater than zero and (b) not less than the net worth of the Issuer immediately prior to giving effect to such consolidation or mergerliens.
(bc) The Issuer shall not convey In case of any such amalgamation, reconstruction, consolidation, merger, sale or transfer all or substantially all conveyance (other than by way of its properties or assets, including those included a temporary lease in the Trust Estate, to any Person (except as expressly permitted ordinary course of business) and following such an assumption by the Indenturesuccessor Person, such successor Person shall succeed to and be substituted for the Security AgreementGuarantor, with the Repurchase Agreement or the Servicing Agreement), unless
(i) the Person that acquires by conveyance or transfer the properties and assets of the Issuer shall (A) be a United States citizen or a Person organized and existing under the laws of the United States of America or any State, (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee same effect as if it had been named herein and the Agent in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each Related Document on the part of the Issuer to be performed or observed, all as provided herein, (C) expressly agree by means of such supplemental indenture that all right, title and interest so conveyed or transferred Guarantor shall be subject relieved of all obligations and subordinate to the rights of Holders of the Notes, (D) unless otherwise provided in such Supplemental Indenture, expressly agree to indemnify, defend and hold harmless the Issuer against and from any loss, liability or expense arising covenants under or related to this Indenture and the Notes Guaranty. In case of any such amalgamation, reconstruction, consolidation, merger, sale or conveyance such changes in phraseology and form (Ebut not in substance) expressly agree by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with may be made in the Commission (and any other appropriate Person) required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect Securities thereafter to such transaction, no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel which shall issued as may be delivered to and shall be satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing) to the effect that such transaction will not have any material adverse tax consequence to the Issuer, the Security Insurer or any Noteholder;
(v) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(vi) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (b)(v) of this Section 1003 or that no such actions will be taken) each stating that such conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and
(vii) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such conveyance or transfer of properties or assets at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such conveyance or transfer and the Person acquiring by conveyance or transfer the properties or assets of the Issuer has a net worth, immediately after such conveyance or transfer, that is (a) greater than zero and (b) not less than the net worth of the Issuer immediately prior to giving effect to such conveyance or transferappropriate.
Appears in 1 contract
Samples: Indenture (Astrazeneca PLC)
Consolidation, Merger, Sale of Assets. (a) the Issuer shall not Section 8.1. Company May Merge, Consolidate, etc., Only on --------------------------------------------- Certain Terms. -------------- The Company will not, in a single transaction or through a series of related transactions, consolidate with or merge with or into any other PersonPerson or sell, unlessassign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets to any Person or group of affiliated Persons, or permit any of its Subsidiaries to enter into any such transaction or series of related transactions if such transaction or series of related transactions, in the aggregate, would result in a sale, assignment, conveyance, transfer, lease or disposition of all or substantially all of the properties and assets of the Company and its Subsidiaries on a Consolidated basis to any other Person or group of affiliated Persons, unless at the time and after giving effect thereto:
(i) either (a) the Company will be the continuing corporation or (b) the Person (if other than the IssuerCompany) formed by or surviving such consolidation or merger shall into which the Company is merged or the Person which acquires by sale, assignment, conveyance, transfer, lease or disposition all or substantially all of the properties and assets of the Company and its Subsidiaries on a Consolidated basis (the "Surviving Entity") will be a Person corporation duly organized and validly existing under the laws of the United States of America America, any state thereof or any State the District of Columbia and shall such Person expressly assumeassumes, by an indenture a supplemental hereto, executed and delivered to the Trustee and the Agentindenture, in a form and substance satisfactory to the Trustee, all the Agent obligations of the Company under the Securities and hereunder, as the case may be, and the Security Insurer (so long as no Insurer Default shall have occurred Securities and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture will remain in full force and each other Related Document on the part of the Issuer to be performed or observed, all effect as provided hereinso supplemented;
(ii) immediately before and immediately after giving effect to such transaction on a pro forma basis (and treating any Indebtedness not previously an obligation of the Company or any of its Subsidiaries which becomes the obligation of the Company or any of its Subsidiaries as a result of such transaction as having been incurred at the time of such transaction), no Default or Event of Default shall will have occurred and be continuing;
(iii) immediately before and immediately after giving effect to such transaction on a pro forma basis (on the Rating Agency Condition shall have been satisfied assumption that the transaction occurred on the first day of the four-quarter period for which financial results are available ending immediately prior to the consummation of such transaction with the appropriate adjustments with respect to the transaction being included in such transaction;pro forma calculation), the Company (or the Surviving Entity if the Company is not the continuing obligor hereunder) could incur $1.00 of additional Indebtedness (other than Permitted Indebtedness or Permitted Subsidiary Indebtedness) under Section 10.8; and
(iv) any action as is necessary to maintain at the lien and security interest created in favor time of the Collateral Agent by transaction the Security Agreement shall Company or the Surviving Entity will have been taken;
(v) the Issuer shall have delivered delivered, or caused to be delivered, to the Trustee Trustee, in form and substance reasonably satisfactory to the Agent Trustee, an Officers' Officer's Certificate and an Opinion of Counsel (which shall describe Counsel, each to the actions taken as required by clause (a)(iv) of this Section 1003 or that no such actions will be taken) each stating effect that such consolidation consolidation, merger, transfer, sale, assignment, conveyance, transfer, lease or merger other transaction and such the supplemental indenture in respect thereof comply with this Article Indenture and that all conditions precedent herein provided for relating to such transaction have been complied with (including with; provided, however, that the foregoing prohibition shall not prohibit any filing required by the Exchange Act); and
(vi) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such consolidation merger between or merger at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such consolidation among Subsidiaries or merger between a Subsidiary and the Issuer or Company, provided the Person (if other than Company is the Issuer) formed by or surviving such consolidation or merger has a net worth, immediately after such consolidation or merger, that is (a) greater than zero and (b) not less than the net worth of the Issuer immediately prior to giving effect to such consolidation or mergercontinuing corporation.
(b) The Issuer shall not convey or transfer all or substantially all of its properties or assets, including those included in the Trust Estate, to any Person (except as expressly permitted by the Indenture, the Security Agreement, the Repurchase Agreement or the Servicing Agreement), unless
(i) the Person that acquires by conveyance or transfer the properties and assets of the Issuer shall (A) be a United States citizen or a Person organized and existing under the laws of the United States of America or any State, (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each Related Document on the part of the Issuer to be performed or observed, all as provided herein, (C) expressly agree by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of Holders of the Notes, (D) unless otherwise provided in such Supplemental Indenture, expressly agree to indemnify, defend and hold harmless the Issuer against and from any loss, liability or expense arising under or related to this Indenture and the Notes and (E) expressly agree by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with the Commission (and any other appropriate Person) required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel which shall be delivered to and shall be satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing) to the effect that such transaction will not have any material adverse tax consequence to the Issuer, the Security Insurer or any Noteholder;
(v) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(vi) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (b)(v) of this Section 1003 or that no such actions will be taken) each stating that such conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and
(vii) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such conveyance or transfer of properties or assets at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such conveyance or transfer and the Person acquiring by conveyance or transfer the properties or assets of the Issuer has a net worth, immediately after such conveyance or transfer, that is (a) greater than zero and (b) not less than the net worth of the Issuer immediately prior to giving effect to such conveyance or transfer.
Appears in 1 contract
Consolidation, Merger, Sale of Assets. (a) the Issuer shall The Borrower will not, and will not consolidate permit any of its Subsidiaries to, directly or merge with or into any other Person, unlessindirectly,
(i) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that:
(a) any Subsidiary of the Person Borrower may consolidate with or merge into the Borrower or a Wholly-Owned Subsidiary of the Borrower if the Borrower or a Wholly-Owned Subsidiary of the Borrower, as the case may be, shall be the surviving Person;
(if b) any entity (other than a Subsidiary of the IssuerBorrower) formed by may consolidate with or surviving such consolidation merge into the Borrower or merger a Subsidiary if the Borrower or a Subsidiary of the Borrower, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, (i) the Borrower and its Subsidiaries (x) shall not have a Person Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Borrower most recently delivered pursuant to Section 7A.1, of less than the Consolidated Net Worth of the Borrower immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers’ Certificate delivered to each holder of a Note at the time of such transaction, and (y) could incur at least $1.00 of additional Indebtedness in compliance with Section 7B.1 and clause (xi) of Section 7B.2, (ii) substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole, shall be located and substantially all of their business shall be conducted within the continental United States of America or Canada and (iii) no Default or Event of Default shall exist and be continuing; and
(c) the Borrower may consolidate with or merge into any other entity if (I) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or any State state thereof or the. District of Columbia, with substantially all of its properties located and shall its business conducted within the continental United States of America, (II) such corporation or limited partnership expressly assumeand unconditionally assumes in writing the obligations of the Borrower under this Agreement, by an indenture supplemental hereto, executed and delivered to the Trustee Notes and the Agent, in form other Loan Documents and substance delivers to each holder of a Note at the time outstanding an opinion of counsel satisfactory to the Trustee, Administrative Agent with respect to the Agent due authorization and execution of the related agreement of assumption and the Security Insurer enforceability of such agreement against such corporation or partnership, (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each other Related Document on the part of the Issuer to be performed or observed, all as provided herein;
(iiIII) immediately after giving effect to such transaction, such corporation or limited partnership (x) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to Section 7A.1 (or if no such financials have yet been delivered under Section 7A.1, consistent with the consolidated financial statements referred to in Section 8.4), of less than the Consolidated Net Worth of the Borrower and its Subsidiaries immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officer’s Certificate delivered to the Administrative Agent (copies of which shall be promptly delivered by the Administrative Agent to the Banks) and (y) could incur at least $1.00 of additional Indebtedness in compliance with Section 7B.1 and clause (xiii) of Section 7B.2, and (IV) no Default or Event of Default shall have occurred exist and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect continuing immediately before or after giving effect to such transaction;
(ivii) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that any Subsidiary of the Borrower may sell, lease or otherwise dispose of all or substantially all its assets to the Borrower or to a Wholly-Owned Subsidiary of the Borrower; or
(iii) sell, lease, convey, abandon or otherwise dispose of (including, without limitation, in connection with a Sale and Lease-Back Transaction) any action as is necessary to maintain the lien and security interest created of its assets (except in favor of the Collateral Agent by the Security Agreement shall have been taken;
(v) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required a transaction permitted by clause (a)(ivi)(a), (i)(b) or (ii) of this Section 1003 7B.7 or that no such actions will be takensales of inventory in the ordinary course of business consistent with past practice) each stating that such consolidation or merger and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including issue or sell Capital Stock of any filing required by the Exchange Act); and
(vi) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such consolidation or merger at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval Subsidiary of the Security Insurer Borrower, whether in a single transaction or a series of such consolidation or merger and the Issuer or the Person related transactions (if other than the Issuer) formed by or surviving such consolidation or merger has a net worth, immediately after such consolidation or merger, that is (a) greater than zero and (b) not less than the net worth each of the Issuer immediately prior to giving effect to such consolidation or merger.
(b) The Issuer shall not convey or transfer all or substantially all of its properties or assetsforegoing non-excepted transactions, including those included in the Trust Estate, to any Person (except as expressly permitted by the Indenture, the Security Agreement, the Repurchase Agreement or the Servicing Agreementan “Asset Sale”), unless:
(i) the Person that acquires by conveyance or transfer the properties and assets of the Issuer shall (A) be a United States citizen or a Person organized and existing under the laws of the United States of America or any State, (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each Related Document on the part of the Issuer to be performed or observed, all as provided herein, (C) expressly agree by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of Holders of the Notes, (D) unless otherwise provided in such Supplemental Indenture, expressly agree to indemnify, defend and hold harmless the Issuer against and from any loss, liability or expense arising under or related to this Indenture and the Notes and (E) expressly agree by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with the Commission (and any other appropriate Person) required by the Exchange Act in connection with the Notes;
(iia) immediately after giving effect to such transaction, proposed disposition no Default or Event of Default shall have occurred exist and be continuing, satisfaction of this requirement to be set forth in reasonable detail in an Officer’s Certificate delivered to each holder of a Note at the time of such transaction in the case of any Asset Sale involving assets that generates EBITDA and such Asset Sale involves consideration of $2,500,000 or more;
(iiib) such sale or other disposition is for cash consideration or for consideration consisting of not less than 75% cash and not more than 25% interest-bearing promissory notes; provided, that the Rating Agency Condition limitation referred to in this clause (b) shall have been satisfied with respect not apply to such transactionany Asset Sale generating less than $2,500,000 of Net Proceeds;
(ivc) one of the following two conditions must be satisfied:
(i) the Issuer shall have received an Opinion aggregate Net Proceeds of Counsel which shall be delivered all assets so disposed of (whether or not leased back) from the Closing Date through the date of such disposition does not exceed $50,000,000; or
(ii) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with clause (x) of this clause (c)(ii)) exceeds the limitations determined pursuant to and shall be satisfactory to the Trusteeclause (c)(i) of this Section 7B.7 (such excess amount being herein called “Excess Sale Proceeds”), the Agent and Borrower shall within 12 calendar months of the Security Insurer date on which such Net Proceeds exceeded any such limitation, cause an amount equal to such Excess Sale Proceeds to be applied (so long as no Insurer Default shall have occurred and be continuingx) to the effect that such transaction will not have any material adverse tax consequence acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business, or (y) to the Issuerextent not applied pursuant to the immediately preceding clause (x), to offer to make prepayments on the Notes pursuant to Section 4.2.3 hereto and, allocated on the basis specified for such prepayments in the definition of Allocable Proceeds, to offer to repay other Parity Debt (other than Indebtedness under Section 7B.2 (ii) or that by its terms does not permit such offer to be made); and
(d) for any Asset Sale involving assets that generate Consolidated EBITDA and involve consideration of $2,500,000 or more, the Security Insurer or any Noteholder;
(v) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(vi) the Issuer Borrower shall have delivered to the Trustee and Noteholders a Certificate of the Agent an Officers' Certificate and an Opinion Board of Counsel (which shall describe Directors of the actions taken as required by clause (b)(v) of this Section 1003 or that no such actions will be taken) each stating General Partner, certifying that such conveyance sale or other disposition is for fair value and is in the best interests of the Borrower. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required of assets or issuance or sale of Capital Stock by the Exchange Act); and
Borrower or any of its Subsidiaries to the Borrower or a Wholly-Owned Subsidiary of the Borrower, (vii2) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such conveyance or any transfer of properties assets or assets at least 20 Business Days prior issuance or sale of Capital Stock by the Borrower or any of its Subsidiaries to any Person in exchange for, or the Net Proceeds of which are applied within 12 months to the consummation purchase of, other assets used in a line of such action business permitted under Section 7B.8 and shall have received having a fair market value (as determined in good faith by the prior written approval Board of Directors of the Security Insurer of such conveyance or transfer and the Person acquiring by conveyance or transfer the properties or assets of the Issuer has a net worth, immediately after such conveyance or transfer, that is (a) greater than zero and (bGeneral Partner) not less than the net worth that of the Issuer immediately prior assets so transferred or Capital Stock so issued or sold and (3) any transfer of assets pursuant to giving effect to such conveyance or transferan Investment permitted by Section 7B.5.
Appears in 1 contract
Consolidation, Merger, Sale of Assets. (a) Neither the Issuer shall not consolidate Borrower nor any of its Material Subsidiaries (in one transaction or merge with series of transactions) will wind up, liquidate or dissolve its affairs, or enter into any other Persontransaction of merger or consolidation, unless
except any merger, consolidation, dissolution or liquidation (i) in which the Person (Borrower is the surviving entity or if other than the Issuer) formed by or Borrower is not a party to such transaction then a Subsidiary is the surviving such consolidation or merger shall be a Person organized and existing under the laws of the United States of America or any State and shall expressly assumeentity, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent, in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each other Related Document on the part of the Issuer to be performed or observed, all as provided herein;
(ii) with respect to Material Subsidiaries, in which the surviving entity becomes a Material Subsidiary of the Borrower immediately upon the effectiveness of such merger, consolidation, dissolution or liquidation or (iii) in connection with a transaction permitted by Section 6.3(b); provided that immediately prior to and on a Pro Forma Basis after giving effect to such transaction, transaction no Default or Event of Default shall have has occurred and be or is continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(v) the Issuer shall have delivered to the Trustee and the Agent . In addition, an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (a)(iv) of this Section 1003 Asset Securitization Subsidiary may wind-up, liquidate or dissolve provided that no such actions will be taken) each stating that such consolidation or merger and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and
(vi) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such consolidation or merger at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such consolidation or merger and the Issuer or the Person (if other than the Issuer) formed by or surviving such consolidation or merger has a net worth, immediately after such consolidation or merger, that is (a) greater than zero and (b) not less than the net worth of the Issuer immediately prior to giving effect to such consolidation or merger.
(b) The Issuer shall not convey or transfer all or substantially all of its properties or assets, including those included in the Trust Estate, to any Person (except as expressly permitted by the Indenture, the Security Agreement, the Repurchase Agreement or the Servicing Agreement), unless
(i) the Person that acquires by conveyance or transfer the properties and assets of the Issuer shall (A) be on a United States citizen or a Person organized and existing under the laws of the United States of America or any State, (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each Related Document on the part of the Issuer to be performed or observed, all as provided herein, (C) expressly agree by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of Holders of the Notes, (D) unless otherwise provided in such Supplemental Indenture, expressly agree to indemnify, defend and hold harmless the Issuer against and from any loss, liability or expense arising under or related to this Indenture and the Notes and (E) expressly agree by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with the Commission (and any other appropriate Person) required by the Exchange Act in connection with the Notes;
(ii) immediately Pro Forma Basis after giving effect to such transaction, transaction no Default or Event of Default shall have has occurred and be is continuing;. For the avoidance of doubt the Borrower may not enter into a transaction of merger or consolidation unless the Borrower is the surviving entity.
(iiib) Sell or otherwise dispose of all or substantially all of the Rating Agency Condition assets of the Borrower and its Subsidiaries, taken as a whole; provided that it is understood for purposes of clarity that this Section 6.3(b) shall have been satisfied with not prohibit or limit in any respect transactions in the ordinary course of business of the Borrower or any of its Subsidiaries (including but not limited to such transaction;asset securitization transactions or similar transactions entered into in the ordinary course of business).
(ivc) the Issuer shall have received an Opinion Except as provided in Section 6.3(d), sell or otherwise dispose of Counsel which any business unit of PHH Mortgage Corporation and its Subsidiaries, PHH Vehicle Management Services Group LLC and its Subsidiaries, PHH Broker Partner Corporation and its Subsidiaries or PHH Home Loans, LLC and its Subsidiaries; provided that any such sale or disposition shall be delivered to and shall be satisfactory to the Trustee, the Agent and the Security Insurer (permitted so long as no Insurer Default shall have occurred the nature of the business conducted by the Borrower and be continuing) to its Subsidiaries, taken as a whole, on the effect that such transaction Closing Date will not have any material adverse tax consequence to change.
(d) For the Issueravoidance of doubt, the Security Insurer or any Noteholder;Borrower and its Subsidiaries may sell equity ownership interests in PHH Home Loans, LLC pursuant to contractual agreements existing on the Closing Date.
(ve) any action as is necessary to maintain Notwithstanding the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(vi) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (b)(v) of this Section 1003 or that no such actions will be taken) each stating that such conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and
(vii) so long as no Insurer Default shall have occurred and be continuingforegoing, the Issuer shall have given the Security Insurer written notice of such conveyance or transfer of properties or assets at least 20 Business Days prior to the consummation of such action Borrower and shall have received the prior written approval of the Security Insurer of such conveyance or transfer and the Person acquiring by conveyance or transfer the properties or assets of the Issuer has its Subsidiaries may not make a net worth, immediately after such conveyance or transfer, that is (a) greater than zero and (b) not less than the net worth of the Issuer immediately prior to giving effect to such conveyance or transferMaterial Disposition.
Appears in 1 contract
Samples: Credit Agreement (PHH Corp)
Consolidation, Merger, Sale of Assets. (a) the Issuer shall not consolidate Dissolve, liquidate or merge with wind up their affairs or enter into any other Persontransaction of merger or consolidation; provided, unless
however that (i) the Borrower may merge or consolidate with any Person (if other than the Issuer) formed by or surviving such consolidation or merger shall be a Person organized and existing under the laws of the United States of America or any State and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent, in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default (A) the Borrower shall have occurred and be continuing)the continuing or surviving corporation, (B) such merger or consolidation is not conducted in order to circumvent compliance with the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each other Related Document on the part of the Issuer to be performed or observedCredit Documents, all as provided herein;
(iiC) immediately after giving effect to such transaction, (1) no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(v) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (a)(iv) of this Section 1003 or that no such actions will be taken) each stating that such consolidation or merger and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and
(vi) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such consolidation or merger at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such consolidation or merger and the Issuer or the Person (if other than the Issuer) formed by or surviving such consolidation or merger has a net worth, immediately after such consolidation or merger, that is (a) greater than zero exist and (b2) not less than the net worth of the Issuer immediately prior to giving effect to such consolidation or merger.
(b) The Issuer shall not convey or transfer all or substantially all of its properties or assets, including those included in the Trust Estate, to any Person (except as expressly permitted by the Indenture, the Security Agreement, the Repurchase Agreement or the Servicing Agreement), unless
(i) the Person that acquires by conveyance or transfer the properties and assets of the Issuer shall (A) be a United States citizen or a Person organized and existing under the laws of the United States of America or any State, (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each Related Document on the part of the Issuer to be performed or observed, all as provided herein, (C) expressly agree by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of Holders of the Notes, (D) unless otherwise provided in such Supplemental Indenture, expressly agree to indemnify, defend and hold harmless the Issuer against and from any loss, liability or expense arising under or related to this Indenture and the Notes and (E) expressly agree by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with the Commission (and any other appropriate Person) required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel which shall be delivered to and shall be satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing) to the effect that such transaction will not have any material adverse tax consequence to the Issuer, the Security Insurer or any Noteholder;
(v) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(vi) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (b)(v) of this Section 1003 or that no such actions will be taken) each stating that such conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and
(vii) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such conveyance or transfer of properties or assets at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such conveyance or transfer and the Person acquiring by conveyance or transfer the properties or assets of the Issuer has a net worth, immediately occur after such conveyance or transfer, that is (a) greater than zero and (b) not less than the net worth of the Issuer immediately prior to giving effect to such conveyance merger or transferconsolidation and (D) to the extent such merger or consolidation is with a Person other than a Subsidiary of the Borrower, such Person is in the same line of business as the Borrower and its Subsidiaries, (ii) any Foreign Subsidiary of the Borrower may be merged or consolidated with or into any other Foreign Subsidiary of the Borrower; provided that after giving effect to any such merger or consolidation the Borrower and its Subsidiaries shall be in compliance with Section 7.11 and (iii) any Foreign Subsidiary of the Borrower may dissolve, liquidate or wind-up its affairs at any time; provided that after given effect to any such dissolution, liquidation, or a wind-up the Borrower and its Subsidiaries shall be in compliance with Section 7.11.
(b) Sell, lease, transfer or otherwise dispose of any Property (including accounts and notes receivable, with or without recourse) other than (i) the sale of inventory in the ordinary course of business for fair consideration, (ii) the sale or disposition of machinery and equipment no longer used or useful in the conduct of such Person's business, (iii) other sales of assets during any fiscal year having an aggregate fair market value of less than $5,000,000 and (iv) any transfer or disposition of Property permitted by Section 8.4(a)(ii) or Section 8.4(a)(iii).
Appears in 1 contract
Consolidation, Merger, Sale of Assets. (a) Neither the Issuer shall not consolidate Borrower nor any of its Material Subsidiaries (in one transaction or merge with series of transactions) will wind up, liquidate or dissolve its affairs, or enter into any other Persontransaction of merger or consolidation, unless
except any merger, consolidation, dissolution or liquidation (i) in which the Person (Borrower is the surviving entity or if other than the Issuer) formed by or Borrower is not a party to such transaction then a Subsidiary is the surviving such consolidation or merger shall be a Person organized and existing under the laws of the United States of America or any State and shall expressly assumeentity, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent, in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each other Related Document on the part of the Issuer to be performed or observed, all as provided herein;
(ii) with respect to Material Subsidiaries, in which the surviving entity becomes a Material Subsidiary of the Borrower immediately upon the effectiveness of such merger, consolidation, dissolution or liquidation or (iii) in connection with a transaction permitted by Section 6.3(b); provided that immediately prior to and on a Pro Forma Basis after giving effect to such transaction, transaction no Default or Event of Default shall have has occurred and be or is continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(v) the Issuer shall have delivered to the Trustee and the Agent . In addition, an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (a)(iv) of this Section 1003 Asset Securitization Subsidiary may wind-up, liquidate or dissolve provided that no such actions will be taken) each stating that such consolidation or merger and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and
(vi) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such consolidation or merger at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such consolidation or merger and the Issuer or the Person (if other than the Issuer) formed by or surviving such consolidation or merger has a net worth, immediately after such consolidation or merger, that is (a) greater than zero and (b) not less than the net worth of the Issuer immediately prior to giving effect to such consolidation or merger.
(b) The Issuer shall not convey or transfer all or substantially all of its properties or assets, including those included in the Trust Estate, to any Person (except as expressly permitted by the Indenture, the Security Agreement, the Repurchase Agreement or the Servicing Agreement), unless
(i) the Person that acquires by conveyance or transfer the properties and assets of the Issuer shall (A) be on a United States citizen or a Person organized and existing under the laws of the United States of America or any State, (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each Related Document on the part of the Issuer to be performed or observed, all as provided herein, (C) expressly agree by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of Holders of the Notes, (D) unless otherwise provided in such Supplemental Indenture, expressly agree to indemnify, defend and hold harmless the Issuer against and from any loss, liability or expense arising under or related to this Indenture and the Notes and (E) expressly agree by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with the Commission (and any other appropriate Person) required by the Exchange Act in connection with the Notes;
(ii) immediately Pro Forma Basis after giving effect to such transaction, transaction no Default or Event of Default shall have has occurred and be is continuing;. For the avoidance of doubt the Borrower may not enter into a transaction of merger or consolidation unless the Borrower is the surviving entity.
(iiib) Sell or otherwise dispose of all or substantially all of the Rating Agency Condition assets of the Borrower and its Subsidiaries, taken as a whole; provided that it is understood for purposes of clarity that this Section 6.3(b) shall have been satisfied with not prohibit or limit in any respect transactions in the ordinary course of business of the Borrower or any of its Subsidiaries (including but not limited to such transaction;asset securitization transactions or similar transactions entered into in the ordinary course of business).
(ivc) the Issuer shall have received an Opinion Except as provided in Section 6.3(d), sell or otherwise dispose of Counsel which any business unit of PHH Mortgage Corporation and its Subsidiaries, PHH Vehicle Management Services Group LLC and its Subsidiaries, PHH Broker Partner Corporation and its Subsidiaries or PHH Home Loans, LLC and its Subsidiaries; provided that any such sale or disposition shall be delivered to and shall be satisfactory to the Trustee, the Agent and the Security Insurer (permitted so long as no Insurer Default shall have occurred the nature of the business conducted by the Borrower and be continuing) to its Subsidiaries, taken as a whole, on the effect that such transaction Closing Date will not have any material adverse tax consequence to change.
(d) For the Issueravoidance of doubt, the Security Insurer or any Noteholder;
(v) any action as is necessary Borrower and its Subsidiaries may sell equity ownership interests in PHH Home Loans, LLC pursuant to maintain contractual agreements existing on the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(vi) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (b)(v) of this Section 1003 or that no such actions will be taken) each stating that such conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and
(vii) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such conveyance or transfer of properties or assets at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such conveyance or transfer and the Person acquiring by conveyance or transfer the properties or assets of the Issuer has a net worth, immediately after such conveyance or transfer, that is (a) greater than zero and (b) not less than the net worth of the Issuer immediately prior to giving effect to such conveyance or transferClosing Date.
Appears in 1 contract
Samples: Credit Agreement (PHH Corp)
Consolidation, Merger, Sale of Assets. (a) the Issuer shall not consolidate Dissolve, liquidate or merge with wind up their affairs or enter into any other Persontransaction of merger or consolidation; provided, unless
however, that (i) the Borrower may merge or consolidate with any Person (if other than the Issuer) formed by or surviving such consolidation or merger shall be a Person organized and existing under the laws of the United States of America or any State and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent, in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default (A) the Borrower shall have occurred and be continuing)the continuing or surviving corporation, (B) such merger or consolidation is not conducted in order to circumvent compliance with the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each other Related Document on the part of the Issuer to be performed or observedCredit Documents, all as provided herein;
(iiC) immediately after giving effect to such transaction, (1) no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(v) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (a)(iv) of this Section 1003 or that no such actions will be taken) each stating that such consolidation or merger and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and
(vi) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such consolidation or merger at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such consolidation or merger and the Issuer or the Person (if other than the Issuer) formed by or surviving such consolidation or merger has a net worth, immediately after such consolidation or merger, that is (a) greater than zero exist and (b2) not less than the net worth of the Issuer immediately prior to giving effect to such consolidation or merger.
(b) The Issuer shall not convey or transfer all or substantially all of its properties or assets, including those included in the Trust Estate, to any Person (except as expressly permitted by the Indenture, the Security Agreement, the Repurchase Agreement or the Servicing Agreement), unless
(i) the Person that acquires by conveyance or transfer the properties and assets of the Issuer shall (A) be a United States citizen or a Person organized and existing under the laws of the United States of America or any State, (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each Related Document on the part of the Issuer to be performed or observed, all as provided herein, (C) expressly agree by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of Holders of the Notes, (D) unless otherwise provided in such Supplemental Indenture, expressly agree to indemnify, defend and hold harmless the Issuer against and from any loss, liability or expense arising under or related to this Indenture and the Notes and (E) expressly agree by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with the Commission (and any other appropriate Person) required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel which shall be delivered to and shall be satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing) to the effect that such transaction will not have any material adverse tax consequence to the Issuer, the Security Insurer or any Noteholder;
(v) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(vi) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (b)(v) of this Section 1003 or that no such actions will be taken) each stating that such conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and
(vii) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such conveyance or transfer of properties or assets at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such conveyance or transfer and the Person acquiring by conveyance or transfer the properties or assets of the Issuer has a net worth, immediately occur after such conveyance or transfer, that is (a) greater than zero and (b) not less than the net worth of the Issuer immediately prior to giving effect to such conveyance merger or transferconsolidation and (D) to the extent such merger or consolidation is with a Person other than a Subsidiary of the Borrower, such Person is in the same line of business as the Borrower and its Subsidiaries, (ii) any Foreign Subsidiary of the Borrower may be merged or consolidated with or into any other Foreign Subsidiary of the Borrower; provided that after giving effect to any such merger or consolidation the Borrower and its Subsidiaries shall be in compliance with Section 7.11 and (iii) any Foreign Subsidiary of the Borrower (other than a Material Subsidiary) may dissolve, liquidate or wind-up its affairs at any time; provided that after giving effect to any such dissolution, liquidation or wind-up the Borrower and its Subsidiaries shall be in compliance with Section 7.11.
(b) Sell, lease, transfer or otherwise dispose of any Property (including accounts and notes receivable, with or without recourse) other than (i) the sale of inventory in the ordinary course of business for fair consideration, (ii) the sale or disposition of machinery and equipment no longer used or useful in the conduct of such Person's business, (iii) other sales of assets during any fiscal year having an aggregate fair market value of less than $5,000,000 and (iv) any transfer or disposition of Property permitted by Section 8.4(a)(ii) or Section 8.4(a)(iii).
Appears in 1 contract
Consolidation, Merger, Sale of Assets. (a) the Issuer shall The Borrower will not, and will not consolidate permit any of its Subsidiaries to, directly or merge with or into any other Person, unlessindirectly,
(i) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that:
(a) any Subsidiary of the Person Borrower may consolidate with or merge into the Borrower or a Wholly-Owned Subsidiary of the Borrower if the Borrower or a Wholly-Owned Subsidiary of the Borrower, as the case may be, shall be the surviving Person; and
(if b) any entity (other than a Subsidiary of the IssuerBorrower) formed by may consolidate with or surviving such consolidation merge into the Borrower or merger a Subsidiary if the Borrower or a Subsidiary of the Borrower, as the case may be, shall be a the surviving Person organized and existing under the laws of the United States of America or any State and shall expressly assumeif, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent, in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each other Related Document on the part of the Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, (i) the Borrower and its Subsidiaries (x) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Borrower most recently delivered pursuant to Section 7A.1, of less than the Consolidated Net Worth of the Borrower immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, and (y) could incur at least $1.00 of additional Indebtedness in compliance with Section 7B.1 and clause (xiv) of Section 7B.2, (ii) substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole, shall be located and substantially all of their business shall be conducted within the continental United States of America or Canada and (iii) no Default or Default, Event of Default or Noncompliance Event shall have occurred exist and be continuing;
(ii) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that any Subsidiary of the Borrower may sell, lease or otherwise dispose of all or substantially all its assets to the Borrower or to a Wholly-Owned Subsidiary of the Borrower; or
(iii) the Rating Agency Condition shall have been satisfied sell, lease, convey, abandon or otherwise dispose of (including, without limitation, in connection with respect to such transaction;
(iva Sale and Lease-Back Transaction) any action as is necessary to maintain the lien and security interest created of its assets (except in favor of the Collateral Agent by the Security Agreement shall have been taken;
(v) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required a transaction permitted by clause (a)(ivi)(a), (i)(b), (i)(c), (ii)(a) or (ii)(b) of this Section 1003 7B.7 or that no such actions will be takensales of inventory in the ordinary course of business consistent with past practice) each stating that such consolidation or merger and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including issue or sell Capital Stock of any filing required by the Exchange Act); and
(vi) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such consolidation or merger at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval Subsidiary of the Security Insurer Borrower, whether in a single transaction or a series of such consolidation or merger and the Issuer or the Person related transactions (if other than the Issuer) formed by or surviving such consolidation or merger has a net worth, immediately after such consolidation or merger, that is (a) greater than zero and (b) not less than the net worth each of the Issuer immediately prior to giving effect to such consolidation or merger.
(b) The Issuer shall not convey or transfer all or substantially all of its properties or assetsforegoing non-excepted transactions, including those included in the Trust Estate, to any Person (except as expressly permitted by the Indenture, the Security Agreement, the Repurchase Agreement or the Servicing Agreementan "Asset Sale"), unless:
(i) the Person that acquires by conveyance or transfer the properties and assets of the Issuer shall (A) be a United States citizen or a Person organized and existing under the laws of the United States of America or any State, (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each Related Document on the part of the Issuer to be performed or observed, all as provided herein, (C) expressly agree by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of Holders of the Notes, (D) unless otherwise provided in such Supplemental Indenture, expressly agree to indemnify, defend and hold harmless the Issuer against and from any loss, liability or expense arising under or related to this Indenture and the Notes and (E) expressly agree by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with the Commission (and any other appropriate Person) required by the Exchange Act in connection with the Notes;
(iia) immediately after giving effect to such transactionproposed disposition no Default, no Default or Event of Default or Noncompliance Event shall have occurred exist and be continuing, satisfaction of this requirement to be set forth in reasonable detail in an Officer's Certificate delivered to each holder of a Note at the time of such transaction in the case of any Asset Sale involving assets that generates EBITDA and such Asset Sale involves consideration of $250,000 or more;
(iiib) such sale or other disposition is for cash consideration or for consideration consisting of not less than 75% cash and not more than 25% interest-bearing promissory notes; provided, that the Rating Agency Condition 75% limitation referred to in this clause (b) shall have been satisfied with respect not apply to any Asset Sale consisting solely of a sale or other disposition of land and buildings for an interest bearing promissory note as long as the amount of such transactionpromissory note does not exceed $250,000;
(ivc) one of the following two conditions must be satisfied:
(i) (x) the Issuer shall have received an Opinion aggregate Net Proceeds of Counsel which shall be delivered all assets so disposed of (whether or not leased back) over the immediately preceding 12-month period does not exceed $3,000,000 and (y) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) from the Closing Date through the date of such disposition does not exceed $10,000,000; or
(ii) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with clause (x) of this clause (c)(ii)) exceeds the limitations determined pursuant to clauses (x) and shall be satisfactory to the Trustee(y) of clause (c)(i) of this Section 7B.7 (such excess amount being herein called "Excess Sale Proceeds"), the Agent and Borrower shall within 12 calendar months of the Security Insurer date on which such Net Proceeds exceeded any such limitation, cause an amount equal to such Excess Sale Proceeds to be applied (so long as no Insurer Default shall have occurred and be continuingx) to the effect that such transaction will not have any material adverse tax consequence acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business, or (y) to the Issuerextent not applied pursuant to the immediately preceding clause (x), to offer to make prepayments on the Security Insurer Notes pursuant to Section 4.2.3 hereto and, allocated on the basis specified for such prepayments in the definition of Allocable Proceeds, to offer to repay other Parity Debt (other than Indebtedness under Section 7B.2 (ii) or any Noteholder;that by its terms does not permit such offer to be made); and
(v) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken;
(vid) the Issuer Borrower shall have delivered to the Trustee and Noteholders a Certificate of the Agent an Officers' Certificate and an Opinion Board of Counsel (which shall describe Directors of the actions taken as required by clause (b)(v) of this Section 1003 or that no such actions will be taken) each stating General Partner, certifying that such conveyance sale or other disposition is for fair value and is in the best interests of the Borrower. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required of assets or issuance or sale of Capital Stock by the Exchange Act); and
Borrower or any of its Subsidiaries to the Borrower or a Wholly-Owned Subsidiary of the Borrower, (vii2) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such conveyance or any transfer of properties assets or assets at least 20 Business Days prior issuance or sale of Capital Stock by the Borrower or any of its Subsidiaries to any Person in exchange for, or the consummation Net Proceeds of such action and shall have received the prior written approval of the Security Insurer of such conveyance or transfer and the Person acquiring by conveyance or transfer the properties or assets of the Issuer has a net worth, immediately after such conveyance or transfer, that is (a) greater than zero and (b) not less than the net worth of the Issuer immediately prior to giving effect to such conveyance or transfer.which are applied
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