Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not the Issuer is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (i) either: (A) the Issuer is the surviving company or corporation; or (B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of any Permitted Jurisdiction; (ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject to the Agreed Security Principles; (iii) immediately after such transaction, no Default or Event of Default is continuing; (iv) the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and (v) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons. (b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (i) immediately after giving effect to that transaction, no Default or Event of Default is continuing; (ii) either: (A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental Indenture; or (B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and (iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. (c) Notwithstanding the provisions of paragraph (b) above, (x) (a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
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Samples: Indenture (Norwegian Cruise Line Holdings Ltd.), Indenture (Norwegian Cruise Line Holdings Ltd.)
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer Parent and the Company will not, directly or indirectly: (1i) consolidateamalgamate, amalgamate consolidate or merge with or into another Person (whether or not the Issuer Parent, or, as the case may be, the Company, is the surviving company or corporation), ; or (2ii) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Parent, the Company and its their Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i1) either: :
(A) the Issuer Parent, or, as the case may be, the Company, is the surviving company or corporation; or or
(B) the Person formed by or surviving any such consolidationamalgamation, amalgamation consolidation or merger (if other than the IssuerCompany or, as the case may be, the Parent) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, a corporation organized or existing under the laws of the United States, any Permitted Jurisdictionstate of the United States, the District of Columbia, Canada or any province or territory of Canada;
(ii2) the Person formed by or surviving any such consolidationamalgamation, amalgamation consolidation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made expressly assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer Company under the Notes and Notes, this Indenture and (B) all obligations of the Issuer under the Security Collateral Documents and each Intercreditor Agreement, subject pursuant to agreements reasonably satisfactory to the Agreed Security PrinciplesTrustee;
(iii3) immediately after such transaction, no Default or Event of Default is continuing;exists; and
(iv4) the Issuer Parent, or, as the case may be, the Company, or the Person formed by or surviving any such consolidationamalgamation, amalgamation consolidation or merger (if other than the IssuerParent or the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made made, would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(v) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasonsTest.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with In addition, the terms of Parent and the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) Company will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of lease all or substantially all of the properties or and assets of such Guarantor the Parent, the Company, and its Subsidiaries which are their Restricted Subsidiaries taken as a whole, in one or more related transactions, to another any other Person, unless. This Section 5.01 will not apply to:
(i1) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, an amalgamation or merger assumes all of the obligations of that Guarantor under its Note GuaranteeParent, this Indentureor, as the case may be, the Security Documents and each Intercreditor Agreement to which such Guarantor is a partyCompany, pursuant to a Supplemental Indenturewith an Affiliate solely for the purpose of reincorporating the Parent, or, as the case may be, the Company, in another jurisdiction; or
(B2) such any amalgamation, consolidation or merger, or any sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition of assets does not violate between or among the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate Company and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
Appears in 2 contracts
Samples: Indenture (Angiotech America, Inc.), Indenture (Angiotech Pharmaceuticals Inc)
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not the Issuer is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) either: (A) the Issuer is the surviving company or corporation; or (B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of any Permitted Jurisdiction;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor AgreementDocuments, subject to the Agreed Security Principles;
(iii) immediately after such transaction, no Default or Event of Default is continuing;
(iv) the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(v) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Subsidiary Guarantor (other than a Subsidiary Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, Guarantee and this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Subsidiary Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Subsidiary Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Subsidiary Guarantor under its Note Guarantee, this Indenture, Indenture and the Security Documents and each Intercreditor Agreement to which such Subsidiary Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
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Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer Company will not, directly or indirectly: (1) , consolidate, amalgamate or merge with or into another Person (whether or not the Issuer Company is the surviving company or corporationentity), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Company and its Restricted Subsidiaries Subsidiaries, taken as a whole, in one or more related transactionstransactions to, to another Person, Person unless:
(i) either: (A1) the Issuer Company is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, limited partnership or limited liability company organized or existing under the laws of the United States, any state thereof or the District of Columbia; provided, however, that if the surviving Person is a limited liability company or limited partnership, there shall be a co-issuer of the Notes that is a corporation; or ;
(B2) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of any Permitted Jurisdiction;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has shall have been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the Company’s obligations of the Issuer pursuant to a supplemental indenture under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject to the Agreed Security PrinciplesIndenture;
(iii3) immediately after such transaction, no Default or Event of Default is continuingexists;
(iv4) the Issuer Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition has will have been made made:
(A) would have a Total Indebtedness to Consolidated Cash Flow Ratio immediately after the transaction equal to or less than the Company’s Total Indebtedness to Consolidated Cash Flow Ratio immediately preceding the transaction; or
(B) would, on at the date time of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter periodthereto, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a)Section 4.09(a) hereof; and
(v5) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition Company or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all (if other than the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement Company) or to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers will have been made, has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, in each case, stating that such the consolidation, amalgamation, merger merger, sale, assignment, transfer or transfer and, in other disposition complies with the case in which a Supplemental applicable provisions of this Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied withsatisfied; provided that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (3) and (4) above.
(cb) Notwithstanding the provisions of paragraph (b) aboveclauses (3), (x)4) and (5) (which do not apply to transactions referred to in this sentence) of Section 5.01(a) hereof,
(a1) the Company may consolidate or otherwise combine with or merge with a Restricted Subsidiary solely for the purpose of changing the legal domicile of the Company reincorporating the Company in a state of the United States or the District of Columbia, or changing the legal form of the Company and
(2) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of transfer all or substantially all part of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate the Company or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are another Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such GuarantorSubsidiary.
Appears in 1 contract
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer Company will not, directly or indirectly: (1) , consolidate, amalgamate or merge with or into another Person (whether or not the Issuer Company is the surviving company or corporationentity), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Company and its Restricted Subsidiaries Subsidiaries, taken as a whole, in one or more related transactionstransactions to, to another Person, Person unless:
(i) either: (A1) the Issuer Company is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, limited partnership or limited liability company organized or existing under the laws of the United States, any state thereof or the District of Columbia; provided, however, that if the surviving Person is a limited liability company or limited partnership, there shall be a co-issuer of the Notes that is a corporation; or ;
(B2) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the Company’s obligations pursuant to a supplemental indenture under the Notes and this Indenture and assumes all obligations of the Company under the Security Documents pursuant to such amendments, supplements or other instruments required to be filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by each such entity;
(3) immediately after such transaction, no Default or Event of Default exists;
(4) the Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made: (i) would have a Net Total Leverage Ratio immediately after the transaction equal to or less than the Company’s Net Total Leverage Ratio immediately preceding the transaction; or (ii) would, at the time of such transaction after giving pro forma effect thereto, be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(a) hereof;
(5) the Company, or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, amalgamation, merger, sale, assignment, transfer or other disposition complies with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been made is satisfied; provided that in giving an entity incorporatedOpinion of Counsel, organized or existing under the laws counsel may rely on an Officers’ Certificate as to any matters of any Permitted Jurisdictionfact, including as to satisfaction of clauses (3) and (4) above;
(ii6) to the extent any assets or property of the Company, or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, are property or assets of the type that would constitute Collateral, such surviving entity will take such action as may be reasonably necessary or required to cause such property and assets to be made subject to a Lien securing the Notes pursuant to this Indenture, the Security Documents and the First Lien Intercreditor Agreement in the manner and to the extent required by this Indenture or any of the Security Documents and the First Lien Intercreditor Agreement and shall take all reasonably necessary action so that such Lien is perfected, preserved and protected to the extent required by this Indenture, the Security Documents and the First Lien Intercreditor Agreement; and
(7) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject to the Agreed Security Principles;
(iii) immediately after such transaction, no Default or Event of Default is continuing;
(iv) the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has will have been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant shall become a party to the Fixed Charge Coverage Ratio test set forth Intercreditor Agreements, to the extent then in Section 4.06(a); andeffect, by joinder or supplement.
(vb) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of CounselNotwithstanding clauses (3), in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii(4) and (iv(5) of this Section Section 5.01(a) shall (which do not apply to any saletransactions referred to in this sentence), assignment, transfer, lease, conveyance (i) the Company may consolidate or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer otherwise combine with or into merge with a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate Restricted Subsidiary solely for the purpose of reincorporating or continuing changing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms legal domicile of the Note GuaranteeCompany, this Indenture and any Intercreditor Agreement as provided reincorporating the Company in Section 10.03) will not, directly a state of the United States or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation)District of Columbia, or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all changing the legal form of the properties or assets of such Guarantor Company; and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of transfer all or substantially all part of its properties and assets to the Company or another Restricted Subsidiary.
(c) The provisions of this Section 5.01 (other than the requirements of Section 5.01(a)(3)) shall not apply to the creation of a new Subsidiary as a Restricted Subsidiary. In addition, notwithstanding any Guarantor other provision of this Section 5.01, the Merger (including the merger of Six Flags with and into HoldCo, with HoldCo surviving such merger and the merger of Cedar Fair with and into HoldCo, with HoldCo surviving such merger) will be permitted under the terms of this Indenture, with the only requirements being that, following the consummation of the Merger (if the Merger is consummated), (1) HoldCo expressly assumes all the obligations of the Company under this Indenture, (2) the Cedar Fair Co-Issuers become, pursuant to a supplemental indenture to this Indenture, parties to this Indenture as Co-Issuers, and (b3) the Cedar Fair Subsidiary Guarantors and any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties other direct and assets of such Guarantor and its Subsidiaries which are indirect Restricted Subsidiaries of HoldCo that guarantee indebtedness under the HoldCo Credit Agreement become, pursuant to another Guarantor and (y) any Guarantor may consolidatea supplemental indenture to this Indenture, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantorparties to this Indenture as Guarantors.
Appears in 1 contract
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer will Company shall not, directly or indirectly: (1) consolidatemerge, amalgamate or merge consolidate with or into another Person (whether or not the Issuer Company is the surviving company or continuing corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i1) either: (A) the Issuer Company is the surviving company or continuing corporation; or (Bb) the Person formed by or surviving any such consolidation, merger or amalgamation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of Canada, any Permitted Jurisdictionprovince or territory of Canada, the United States, any state of the United States or the District of Columbia;
(ii2) the Person formed by or surviving or continuing from any such consolidation, merger or amalgamation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer Company under the Notes and Notes, this Indenture and (B) all the Collateral Documents or is liable for those obligations by operation of the Issuer under the Security Documents and each Intercreditor Agreement, subject to the Agreed Security Principleslaw;
(iii3) immediately after such transaction, no Default or Event of Default is continuingexists;
(iv4) the Issuer Company or the Person formed by or surviving or continuing from any such consolidation, merger or amalgamation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, period be permitted to incur at least $US$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Consolidated Secured Net Leverage Ratio test set forth in Section 4.06(a)Test; and
(v5) the Issuer delivers Company shall have delivered to the Trustee, the Canadian Co-Trustee and the Notes Collateral Agent an Officer’s Officers’ Certificate and an Opinion of Counsel, in each case, stating that (i) such consolidation, amalgamation, merger or transfer and, transaction and such assumption agreements described in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, preceding clause (2) comply with all requirements of this Section 5.01 Indenture or the Collateral Documents, as applicable, and that (ii) all conditions precedent provided for in this Indenture relating to such transaction and the Collateral Documents, as applicable, have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with In addition, the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will Company shall not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of lease all or substantially all of the properties or and assets of such Guarantor it and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another any other Person, unless:.
(ic) immediately after giving effect Notwithstanding anything to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property contrary contained in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents Company shall not and each Intercreditor Agreement shall not permit any of its Restricted Subsidiaries to, directly or indirectly, make any acquisition (other than the Acquisition) of another Person or all or substantially all of the assets of such Person following the Issue Date having an aggregate Fair Market Value in excess of $5.0 million unless on the date of such transaction to which such Guarantor acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business if after giving pro forma effect thereto as if the same had occurred at the beginning of the applicable four-quarter period the Company is a party, permitted to incur at least US$1.00 of additional Indebtedness pursuant to a Supplemental Indenture; orthe Consolidated Secured Net Leverage Ratio Test.
(Bd) such This Section 5.01 shall not apply to (i) any sale, assignment, transfer, leaseconveyance, lease or other disposition of assets between or among the Company and any one or more of its Restricted Subsidiaries or between or among any one or more of the Company’s Restricted Subsidiaries and (ii) any Permitted Tax Reorganization.
(e) Section 5.01(a)(3) and Section 5.01(a)(4) shall not apply to any merger, amalgamation, consolidation or arrangement of the Company with or into one or more of its Restricted Subsidiaries for any purpose.
(f) For purposes of this Section 5.01, the sale, assignment, transfer, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor one or more Subsidiaries of the Company, which properties and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidateassets, amalgamate or merge with or into an Affiliate incorporated or organized for if held by the purpose of changing the legal domicile Company instead of such GuarantorSubsidiaries, reincorporating would constitute all or continuing such Guarantor in another jurisdiction substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or changing substantially all of the legal form properties and assets of such Guarantorthe Company.
Appears in 1 contract
Samples: Indenture (Greenfire Resources Ltd.)
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not the Issuer is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) either: (A) the Issuer is the surviving company or corporation; or (B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of any Permitted Jurisdiction;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) assumes, by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject to the Agreed Security PrinciplesIndenture;
(iii) immediately after such transaction, no Default or Event of Default is continuing;
(iv) the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(v) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and Clause (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
Appears in 1 contract
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Each Co-Issuer will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not the Issuer is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) either: (A) the Issuer is the surviving company or corporation; or (B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of any Permitted Jurisdiction;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject to the Agreed Security Principles;
(iii) immediately after such transaction, no Default or Event of Default is continuing;
(iv) the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(v) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will may not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor Co-Issuer is the surviving company or corporationPerson), ; or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor the Company and its Subsidiaries which are Restricted Subsidiaries Subsidiaries, taken as a whole, in one or more related transactions, to another Person, ; unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii1) either:
: (Aa) such Co-Issuer is the person acquiring the property in any such sale surviving entity; or disposition or (b) the Person formed by or surviving any such consolidation, amalgamation or merger assumes all (if other than the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement Co-Issuer) or to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation (or in the case of assets does not violate the provisions Company, a limited partnership or a corporation) organized or existing under the laws of the United States, any state of the United States, the District of Columbia, the federal laws of Canada or the laws of any province thereof (the Co-Issuer or such Person, as the case may be, being herein called the “Successor Company”);
(2) the Successor Company (if other than such Co-Issuer) assumes all the obligations of such Co-Issuer under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(including Section 4.093) immediately after such transaction no Default or Event of Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if the same had occurred at the beginning of the applicable four-quarter period, the Successor Company would be permitted to incur at least CA$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.11(a);
(5) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(iii6) the such Co-Issuer delivers shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, and such Supplemental Indenture, supplemental indenture (if any) comply with this Section 5.01 and that all conditions precedent provided for in Indenture. For purposes of this Indenture relating to such transaction have been complied with.
(c) Notwithstanding Section 5.01, the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfersale, lease, convey conveyance, assignment, transfer or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Guarantor Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The predecessor company will be released from its obligations under this Indenture and the Successor Company will succeed to, and be substituted for, and may exercise every right and power of, such Co-Issuer under this Indenture, but, in the case of a lease of all or substantially all its assets, the predecessor will not be released from the obligation to pay the principal of and interest on the Notes.
(c) This Section 5.01 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among a Co-Issuer and its Subsidiaries which are Restricted Subsidiaries to another Guarantor Subsidiaries. Notwithstanding the foregoing clauses (3) and (y4) of Section 5.01(a), (a) any Restricted Subsidiary may consolidate with, amalgamate with or merge into or transfer all or part of its properties and assets to a Co-Issuer or any other Restricted Subsidiary, subject in the case of the consolidation, amalgamation, merger or transfer of properties of a Guarantor to the provisions set forth in Article Eleven and (b) a Co- Issuer may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized solely for the purpose of changing the legal domicile of reincorporating such Guarantor, reincorporating or continuing such Guarantor Co-Issuer in another jurisdiction state of the United States or changing in any other province of Canada.
(d) Such Co-Issuer will deliver to the legal form Trustee prior to the consummation of such Guarantoreach proposed transaction an Officers’ Certificate certifying that the conditions set forth above are satisfied and an Opinion of Counsel, which opinion may contain customary exceptions and qualifications, that the proposed transaction and the supplemental indenture, if any, comply with this Indenture.
Appears in 1 contract
Samples: Indenture (Dollarama CORP)
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer Company will not, directly or indirectly: (1i) consolidateamalgamate, amalgamate consolidate or merge with or into another Person (whether or not the Issuer Company is the surviving company or corporation), ; or (2ii) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i1) either: :
(A) the Issuer Company is the surviving company or corporation; or or
(B) the Person formed by or surviving any such consolidationamalgamation, amalgamation consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, a corporation organized or existing under the laws of the United States, any Permitted Jurisdictionstate of the United States, the District of Columbia, Canada or any province or territory of Canada;
(ii2) the Person formed by or surviving any such consolidationamalgamation, amalgamation consolidation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made expressly assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer Company under the Notes and Notes, this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Agreed Security PrinciplesTrustee;
(iii3) immediately after such transaction, no Default or Event of Default is continuing;exists; and
(iv4) the Issuer Company or the Person formed by or surviving any such consolidationamalgamation, amalgamation consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(vSection 4.09(a) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasonshereof.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with In addition, the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) Company will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of lease all or substantially all of the properties or and assets of such Guarantor it and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another any other Person, unless. This Section 5.01 will not apply to:
(i1) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, an amalgamation or merger assumes all of the obligations Company with an Affiliate solely for the purpose of that Guarantor under its Note Guarantee, this Indenture, reincorporating the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental IndentureCompany in another jurisdiction; or
(B2) such any amalgamation, consolidation or merger, or any sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition of assets does not violate between or among the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate Company and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
Appears in 1 contract
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not the Issuer is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) either: (A) the Issuer is the surviving company or corporation; or (B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of any Permitted Jurisdiction;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor AgreementDocuments, subject to the Agreed Security Principles;
(iii) immediately after such transaction, no Default or Event of Default is continuing;
(iv) the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(v) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, Guarantee and this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, this Indenture, Indenture and the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
Appears in 1 contract
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer will not, directly or indirectly: :
(1i) consolidate, amalgamate or merge with or into another Person (regardless of whether or not the Issuer is the surviving company Person or corporationone of the Persons that amalgamates with one or more other Persons to form the continuing successor Person), or ; or
(2ii) sell, assign, lease, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or and assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(iA) either: (A1) the Issuer is the surviving company Person (or corporationone of the Persons that amalgamates with one or more other Persons to form the continuing successor Person); or (B2) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerIssuer or one of the Persons that amalgamates with one or more other Persons to form the continuing successor Person) or to which such sale, assignment, transfer, lease, conveyance or other disposition has will have been made is an entity incorporated, a: (i) Person organized or existing under the laws of the United States, any Permitted Jurisdiction;
state thereof or the District of Columbia, or Canada or any province or territory thereof; and (ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer under the Notes Notes, and this Indenture and by operation of law or pursuant to agreements reasonably satisfactory to the Trustee;
(B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject to the Agreed Security Principles;
(iii) immediately after giving effect to such transaction, no Default or Event of Default is continuingexists;
(ivC) either (1) immediately after giving effect to such transaction on a pro forma basis, the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerIssuer or one of the Persons that amalgamates with one or more other Persons to form the continuing successor Person), or to which such sale, assignment, transfer, lease, conveyance or other disposition has will have been made would, on will be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the date of Consolidated Fixed Charge Coverage Ratio test set forth in Section 6.10(a)(i); or (2) immediately after giving effect to such transaction after giving on a pro forma effect thereto basis and any related financing transactions as if the same had occurred at the beginning of the applicable four-four quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth of the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer or one of the Persons that amalgamates with one or more other Persons to form the continuing successor Person) is equal to or greater than the Consolidated Fixed Charge Coverage Ratio immediately before such transaction;
(D) each Guarantor, will, pursuant to the terms of its Guarantee agree that its Guarantee will apply to the obligations of the Issuer or the surviving or continuing Person in Section 4.06(aaccordance with the Notes and this Indenture (including this covenant); and
(vE) the Issuer delivers to the Trustee an Officer’s Officers’ Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in (attaching the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply arithmetic computation to demonstrate compliance with this Section 5.01 and Section 10.1(a)(ii)(C)) certifying that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iiiwith and that such transaction and, if applicable, such agreement complies with this Section 10.1.
(b) and (iv) of this Section 5.01(a) shall not apply to Upon any consolidation, amalgamation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets to or merger, amalgamation or consolidation of the Issuer and its Restricted Subsidiaries in accordance with this covenant, the continuing successor Person formed by the consolidation or amalgamation or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply which the Issuer is merged or amalgamated or to any which the sale, assignment, transfer, lease, conveyance or other disposition is made, will succeed to and be substituted for the Issuer, and may exercise every right and power of the Issuer under this Indenture with the same effect as if the successor had been named as the Issuer therein. When the continuing successor Person assumes all of the Issuer’s obligations under this Indenture pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee and delivers to the Trustee the related Officers’ Certificate and Opinion of Counsel, the Issuer will be discharged from those obligations; provided, however, that the Issuer shall not be relieved from the obligation to pay the principal of and interest on the Notes in the case of a lease of all or substantially all of the assets to Issuer’s assets.
(c) This Section 10.1 will not apply to:
(i) a merger or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;jurisdiction; or
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guaranteemerger, this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such or any sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and
(iii) between or among the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counseland/or its Restricted Subsidiaries, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied withare Guarantors.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
Appears in 1 contract
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer will shall not, directly or indirectly: (1) consolidatemerge, amalgamate or merge consolidate with or into another Person (whether or not the Issuer is the surviving company or continuing corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(ia) either: (Ai) the Issuer is the surviving company or continuing corporation; or (Bii) the Person formed by or surviving any such consolidation, merger or amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of Canada, any Permitted Jurisdictionprovince or territory of Canada, the United States, any state of the United States or the District of Columbia;
(iib) the Person formed by or surviving or continuing from any such consolidation, merger or amalgamation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made (the “Successor Corporation”) assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer under the Notes and this Indenture or is liable for those obligations by operation of law;
(c) if, upon the occurrence of any such transaction, (x) the Notes would become convertible into securities issued by an issuer other than the resulting, surviving, transferee or successor corporation, and (By) all such resulting, surviving, transferee or successor corporation is a Wholly Owned Subsidiary of the issuer of such securities into which the Notes have become convertible, such other issuer shall fully and unconditionally guarantee on a senior basis the resulting, surviving, transferee or successor corporation’s obligations under the Notes;
(d) each Guarantor, unless such Guarantor is the Person with which the Issuer has entered into a transaction under this Section 11.01, will have confirmed in writing that its Guarantee will continue to apply to the Obligations of the Issuer or the surviving entity under the Security Documents Notes and each Intercreditor Agreement, subject to the Agreed Security Principlesthis Indenture;
(iiie) immediately after such transaction, no Default or Event of Default is continuing;
(iv) the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a)exists; and
(vf) the Issuer delivers shall have delivered to the Trustee Trustees an Officer’s Certificate and an Opinion of Counsel, in each case, stating that (i) such consolidation, amalgamation, merger or transfer and, transaction and such assumption agreements and confirmations described in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, preceding clauses (b) and (c) comply with all requirements of this Section 5.01 Indenture and that (ii) all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any saleIn addition, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will shall not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of lease all or substantially all of the properties or and assets of such Guarantor it and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another any other Person, unless:.
Section 11.01 shall not apply to (i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, leaseconveyance, lease or other disposition of assets between or among the Issuer and any one or more of its Subsidiaries or between or among any one or more of the Issuer’s Subsidiaries and (ii) any Permitted Tax Reorganization. Section 11.01(e) shall not apply to any merger, amalgamation, consolidation or arrangement of the Issuer with or into one or more of its Subsidiaries for any purpose. For purposes of this Section 11.01, the sale, assignment, transfer, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor one or more Subsidiaries of the Issuer, which properties and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidateassets, amalgamate or merge with or into an Affiliate incorporated or organized for if held by the purpose of changing the legal domicile Issuer instead of such GuarantorSubsidiaries, reincorporating would constitute all or continuing such Guarantor in another jurisdiction substantially all of the properties and assets of the Issuer on a consolidated basis, shall be deemed to be the transfer of all or changing substantially all of the legal form properties and assets of such Guarantorthe Issuer.
Appears in 1 contract
Samples: Subscription Agreement (M3-Brigade Acquisition III Corp.)
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not the Issuer is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) either: (A) the Issuer is the surviving company or corporation; or (B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of any Permitted Jurisdiction;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) assumes, by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject to the Agreed Security PrinciplesIndenture;
(iii) immediately after such transaction, no Default or Event of Default is continuing;
(iv) the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(v) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) Parent will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not Parent is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of Parent and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) either: (A) Parent is the surviving company or corporation; or (B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Parent) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of any Permitted Jurisdiction;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Parent) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes, by a Supplemental Indenture entered into with the Trustee, all the obligations of Parent under its Note Guarantee and this Indenture;
(iii) immediately after such transaction, no Default or Event of Default is continuing;
(iv) Parent or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Parent), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(v) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(b) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of Parent with or into a Guarantor and clause (iv) of this Section 5.01(b) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of Parent with or into an Affiliate solely for the purpose of reincorporating or continuing Parent in another jurisdiction for tax reasons.
(c) A Guarantor (other than a Parent and any Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, Guarantee and this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, Guarantee and this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(cd) Notwithstanding the provisions of paragraph (b(c) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
Appears in 1 contract
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer Company will not, directly or indirectly: (1) , consolidate, amalgamate or merge with or into another Person (whether or not the Issuer Company is the surviving company or corporationentity), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Company and its Restricted Subsidiaries Subsidiaries, taken as a whole, in one or more related transactionstransactions to, to another Person, Person unless:
(i) either: (A1) the Issuer Company is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, limited partnership or limited liability company organized or existing under the laws of the United States, any state thereof or the District of Columbia; provided, however, that if the surviving Person is a limited liability company or limited partnership, there shall be a co-issuer of the Notes that is a corporation; or ;
(B2) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of any Permitted Jurisdiction;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has shall have been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the Company’s obligations of the Issuer pursuant to a supplemental indenture under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject to the Agreed Security PrinciplesIndenture;
(iii3) immediately after such transaction, no Default or Event of Default is continuingexists;
(iv4) the Issuer Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition has will have been made made:
(A) would have a Total Indebtedness to Consolidated Cash Flow Ratio immediately after the transaction equal to or less than the Company’s Total Indebtedness to Consolidated Cash Flow Ratio immediately preceding the transaction; or
(B) would, on at the date time of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter periodthereto, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a)Section 4.09(a) hereof; and
(v5) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition Company or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all (if other than the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement Company) or to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition will have been made, has delivered to the Trustee an Officers’ Certificate and an Opinion of assets does not violate Counsel, each stating that the consolidation, amalgamation, merger, sale, assignment, transfer or other disposition complies with the applicable provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied withsatisfied; provided that in giving an Opinion of Counsel, counsel may rely on an Officers’ Certificate as to any matters of fact, including as to satisfaction of clauses (3) and (4) above.
(cb) Notwithstanding the provisions of paragraph (b) aboveclauses (3), (x)4) and (5) (which do not apply to transactions referred to in this sentence) of Section 5.01(a) hereof,
(a1) the Company may consolidate or otherwise combine with or merge with a Restricted Subsidiary solely for the purpose of changing the legal domicile of the Company reincorporating the Company in a state of the United States or the District of Columbia, or changing the legal form of the Company and
(2) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of transfer all or substantially all part of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate the Company or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are another Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such GuarantorSubsidiary.
Appears in 1 contract
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer Company will not, directly or indirectly: (1) consolidatemerge, amalgamate or merge consolidate with or into another Person (whether or not the Issuer Company is the surviving company or corporation), or (2) sell, assign, transfer, leaseconvey, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i1) either: :
(Aa) the Issuer Company is the surviving company or corporation; or or
(Bb) the Person formed by or surviving any such consolidation, merger or amalgamation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of Canada, any Permitted Jurisdictionprovince or territory of Canada, the United States, any state of the United States or the District of Columbia;
(ii2) the Person formed by or surviving any such consolidation, merger or amalgamation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer Company under the Notes and this First Supplemental Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject pursuant to agreements reasonably satisfactory to the Agreed Security PrinciplesTrustees or is liable for those obligations by operation of law;
(iii3) immediately after such transaction, no Default or Event of Default is continuing;exists; and
(iv4) the Issuer Company or the Person formed by or surviving any such consolidation, merger or amalgamation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, transfer conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, period (i) be permitted to incur at least $US$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section Section 4.06(a); and
(v) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(aFirst Supplemental Indenture or (ii) shall not apply have had a Fixed Charge Coverage Ratio greater than the actual Fixed Charge Coverage Ratio for the Company pursuant to any salethe Fixed Charge Coverage Ratio test set forth in Section 4.06(a) of this First Supplemental Indenture. In addition, assignmentthe Company will not, transferdirectly or indirectly, lease, conveyance or other disposition of lease all or substantially all of the properties and assets of it and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (ivany other Person.
(b) of this Section 5.01(a) This Section 5.02 will not apply to any sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition of all assets between or substantially all among the Company and any one or more of its Restricted Subsidiaries or between or among any one or more of the assets Company’s Restricted Subsidiaries. Clauses (3) and (4) of Section 5.02(a) of this First Supplemental Indenture will not apply to or (1) any merger, amalgamation amalgamation, consolidation or consolidation arrangement of the Issuer Company with or into one or more of its Restricted Subsidiaries for any purpose or (2) any merger, amalgamation, consolidation, arrangement of the Company with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer Company in another jurisdiction for tax reasonsjurisdiction.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
Appears in 1 contract
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer will Except for the Acquisition (which is explicitly permitted), the Company may not, directly or indirectly: (1i) consolidate, amalgamate or merge with or into another Person (whether or not the Issuer Company is the surviving company or corporationsurvivor), ; or (2ii) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the its properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i1) either: (Ai) the Issuer Company is the surviving company or corporationcontinuing Person; or (Bii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporateda Person (such Person, the “Successor Company”) organized or existing under the laws of Canada or any Permitted Jurisdictionprovince or territory thereof, the United States, any state thereof or the District of Columbia;
(ii2) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made Successor Company expressly assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer Company, as applicable, under the Notes and Notes, this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreementother Note Documents, subject as applicable, pursuant to a supplemental indenture or agreements reasonably satisfactory to the Agreed Security PrinciplesTrustee;
(iii3) immediately after such transaction, transaction no Default or Event of Default is continuingexists;
(iv4) immediately after giving effect to such transaction and any related financing transaction on a pro forma basis as if the same had occurred at the beginning of the applicable Reference Period, either
(a) the Issuer Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made wouldmade, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be permitted to incur at least $US$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(aSection 4.09(a); or
(b) the Fixed Charge Coverage Ratio of the Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made, would be equal to or greater than the Fixed Charge Coverage Ratio of the Company immediately before such transactions;
(5) if the Company is not the Successor Company, each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to the Successor Company’s Obligations under this Indenture and the other Note Documents shall continue to be in effect and such Guarantor shall cause such amendments, supplements or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by such Guarantor;
(6) the transactions will not result in the Company or the Successor Company being required to make any deduction or withholding on account of taxes as described in Section 4.20 that the Company would not have been required to make had such transactions or series of transactions not occurred;
(7) to the extent any assets or property of the Successor Company, or the Person that is merged, amalgamated or consolidated with or into the Successor Company, are property or assets of the type that would constitute Collateral under the Security Documents, the Successor Company will take such action as may be reasonably necessary or required to cause such property and assets to be made subject to a Lien securing the Notes pursuant to this Indenture and the Security Documents in the manner and to the extent required by this Indenture or any of the Security Documents and shall take all reasonably necessary action so that such Lien is perfected, preserved and protected to the extent required by this Indenture and the Security Documents;
(8) the Collateral owned by or sold, assigned, conveyed, leased, transferred or otherwise disposed of to the Successor Company shall (a) continue to constitute Collateral under this Indenture and the Security Documents, (b) be subject to the Lien in favor of the Collateral Agent for the benefit of the Trustee and the holders of the Notes and (c) not be subject to any Lien other than Permitted Liens and other Liens permitted under Section 4.12;
(9) the Successor Company shall become a party to the Note Documents by joinder or supplement; and
(v10) the Issuer delivers Company or the Successor Company has delivered to the Trustee an Officer’s Certificate and an Opinion of CounselCounsel (insofar as the conditions for compliance relate to legal matters), in each case, stating that such consolidation, amalgamation, amalgamation merger or transfer anddisposition, in the case in which a Supplemental Indenture is entered into, as applicable and such Supplemental Indenture, supplemental indenture (if any) comply with this Section 5.01 and that all conditions precedent provided for therefor in this Indenture relating to such transaction have been complied with. Clauses (iiiIndenture.
(b) The restrictions described in Section 5.01(a)(3) and (iv(4) of this Section 5.01(a) shall will not apply to (i) any consolidation, amalgamation or merger of the Company with or into one of the Guarantors for any purpose or (ii) any sale, assignment, transfer, lease, conveyance or other disposition of all properties or substantially all assets of a Restricted Subsidiary of the assets Company to the Company or merger, amalgamation or consolidation of the Issuer with or into to a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasonsGuarantor.
(bc) A Guarantor Notwithstanding Section 5.01(a), the Company may reorganize as any other form of entity provided that:
(other than a Guarantor whose Note Guarantee 1) the entity so formed by or resulting from such reorganization is to be released in accordance with an entity organized or existing under the terms laws of Canada or any province or territory thereof, the United States, any state thereof or the District of Columbia;
(2) the entity so formed by or resulting from such reorganization expressly unconditionally assumes all the obligations of the Note Guarantee, Company under the Notes and this Indenture and pursuant to a supplemental indenture or agreements reasonably satisfactory to the Trustee; and
(3) immediately after such reorganization no Default or Event of Default exists; and
(d) In addition, subject to Section 10.04, the Company will not permit any Intercreditor Agreement as provided in Section 10.03) will notGuarantor to, directly or indirectly: , (1i) consolidateamalgamate, amalgamate consolidate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporationcontinuing Person), or (2ii) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person (other than the Company or another Guarantor), unless:
(1) immediately after giving effect to such transaction or series of transactions, no Default or Event of Default exists;
(2) in the case of any such amalgamation, consolidation or merger, either:
(A) such Guarantor is the surviving entity; or
(B) the Person formed by or surviving any such amalgamation, consolidation or merger (if other than the Guarantor) (the “Successor Guarantor”) unconditionally assumes all the obligations of that Guarantor under its Guarantee and assets this Indenture pursuant to any a supplemental indenture substantially in the form specified in this Indenture;
(3) the Successor Guarantor and (b) any Guarantor may consolidateif other than such Guarantor), amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of unconditionally assumes all or substantially all of the properties and assets obligations of such Guarantor under this Indenture, its Guarantee and its Subsidiaries which are Restricted Subsidiaries the Notes, in each case, pursuant to another a supplemental indenture substantially in the form specified in this Indenture and becomes party to the Collateral Agent Agreement pursuant to a Collateral Agent Agreement Joinder;
(4) immediately after giving effect to such transaction or series of transactions, such Successor Guarantor would not be an Excluded Subsidiary; and
(5) such Subsidiary Guarantor has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or disposition and such supplemental indenture (yif any) any Guarantor may consolidate, amalgamate or merge comply with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantorthis Indenture.
Appears in 1 contract
Samples: Indenture (Enerflex Ltd.)
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Neither the Parent nor the Issuer will not, directly or indirectly: will
(1) consolidateconsolidate with, amalgamate with or merge with or into another Person (whether or not the Issuer is the surviving company or corporation)any Person, or or
(2) sell, assignconvey, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) either: (A) the Issuer is the surviving company or corporation; or (B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of any Permitted Jurisdiction;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject to the Agreed Security Principles;
(iii) immediately after such transaction, no Default or Event of Default is continuing;
(iv) the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(v) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets on a consolidated basis as an entirety or substantially an entirety, in one transaction or a series of related transactions, to any Guarantor and Person, or
(b3) permit any Guarantor may consolidate, amalgamate or Person to merge with or into the Parent or sellthe Issuer, assignas applicable, transferin each case, leaseunless
(A) (i) either (x) the Parent or the Issuer, convey as applicable, is the continuing Person or otherwise dispose (y) the resulting, surviving or transferee Person (a “Successor Company”) is an entity organized and validly existing under (A) in the case of the Parent, the laws of England and Wales, any member state of the European Union, any province of Canada, or the United States or any state thereof or the District of Columbia, and (B) in the case of the Issuer, any province of Canada, or the United States or any state thereof or the District of Columbia, and (ii) the Successor Company expressly assumes by supplemental indenture in form reasonably satisfactory to the Trustee all of the obligations of the Parent or the Issuer, as applicable, under this Indenture and the Notes;
(B) immediately after giving effect to the transaction, no Default has occurred and is continuing;
(C) immediately after giving effect to the transaction on a pro forma basis, (a) the Parent (or, solely in the case of a transaction described in clause (a) above involving Parent, the resulting surviving or transferee Person) could Incur at least $1.00 of Debt under Section 4.09(a) hereof or (b) the Fixed Charge Coverage Ratio of the Parent (or, solely in the case of a transaction described in clause (a) above involving Parent, the resulting surviving or transferee Person) would not be less than immediately prior to such Incurrence; and
(D) the Parent delivers to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that the consolidation, merger or transfer and the supplemental indenture (if any) comply with this Indenture; provided that clauses (B) and (C) above do not apply (i) to the consolidation or merger or sale of all or substantially all the assets of the Parent or the Issuer, as applicable, with or into or to each other, (ii) to the consolidation or merger or sale of all or substantially all the assets of the Parent or the Issuer, as applicable, with or into or to a Wholly Owned Restricted Subsidiary of the Parent, or the consolidation or merger or sale of all or substantially all the assets of a Wholly Owned Restricted Subsidiary with or into the Parent or the Issuer, as applicable, or (iii) if, in the good faith determination of the Board of Directors whose determination is evidenced by a board resolution, the sole purpose of the transaction is to change the jurisdiction of incorporation or organization of the Parent or the Issuer to the United States, any member state of the European Union or any jurisdiction thereof or Canada or any jurisdiction thereof; provided further, that prior to a Permitted Payments Fall-Away Event, clauses (A)(i), (B) and (C) above do not apply to a sale of all or substantially all the assets of Parent or the Issuer to any member of the EVRAZ Group. In the case of any such sale prior to a Permitted Payments Fall-Away Event that does not comply with each of clauses (A)(i), (B) and (C) above, not later than 10 days following the consummation of such sale, the Issuer shall make an Offer to Purchase all outstanding Notes at a purchase price equal to the redemption price of such Note at such time if the Issuer elected to optionally redeem the Notes at such time as set forth under Section 3.07(b) or (c) (as applicable). Such Offer to Purchase will be consummated pursuant to procedures that will be substantially the same as those set forth under Section 4.15.
(b) Neither the Parent nor the Issuer shall lease all or substantially all of the properties and assets of the Parent or the Issuer, whether in one transaction or a series of transactions, to one or more other Persons.
(c) Upon consummation of any transaction effected in accordance with these provisions, if the Parent or the Issuer, as applicable, is not the continuing Person, the resulting, surviving or transferee Person will succeed to, and be substituted for, and may exercise every right and power of, the Parent or the Issuer, as applicable, under this Indenture and the Notes with the same effect as if such successor Person had been named as the Parent or the Issuer, as applicable, in this Indenture. Upon such substitution, except in the case of a sale, conveyance, transfer or disposition of less than all the assets of the Parent or the Issuer, as applicable, on a combined basis, the Parent or the Issuer as applicable, will be released from its obligations under this Indenture and the Notes and the Note Guarantees.
(d) No Guarantor and its Subsidiaries which are Restricted Subsidiaries (other than, to another Guarantor and the extent not otherwise prohibited by this Indenture, the Parent) may
(y1) any Guarantor may consolidate, amalgamate consolidate with or merge with or into any Person, or
(2) sell, convey, transfer or dispose of, all or substantially all its assets as an Affiliate incorporated entirety or organized for substantially as an entirety, in one transaction or a series of related transactions, to any Person, or
(3) permit any Person to merge with or into the purpose of changing the legal domicile of such Guarantor, reincorporating in each case, unless
(A) the other Person is the Parent or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction; or
(B) (1) either (x) the Guarantor is the continuing such Person or (y) the resulting, surviving or transferee Person expressly assumes by supplemental indenture in form satisfactory to the Trustee all of the obligations of the Guarantor under its Note Guarantee; and (2) immediately after giving effect to the transaction, no Default has occurred and is continuing; or
(C) the transaction constitutes a sale or other disposition (including by way of consolidation or merger) of the Guarantor or the sale or disposition of all or substantially all the assets of the Guarantor (in another jurisdiction each case other than to the Parent or changing a Restricted Subsidiary) otherwise permitted by this Indenture, and, in each case, the legal form Parent delivers to the Trustee an Officer’s Certificate and an Opinion of such GuarantorCounsel, each stating that the consolidation, merger or transfer and the supplemental indenture (if any) comply with this Indenture.
Appears in 1 contract
Samples: Indenture (Evraz North America PLC)
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer will Company shall not, directly or indirectly: (1) consolidatemerge, amalgamate or merge consolidate with or into another Person (whether or not the Issuer Company is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i1) either: (A) the Issuer Company is the surviving company or corporation; or (B) the Person formed by or surviving any such consolidation, merger or amalgamation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of Canada, any Permitted Jurisdictionprovince or territory of Canada, the United States, any state of the United States or the District of Columbia;
(ii2) the Person formed by or surviving any such consolidation, merger or amalgamation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer Company under the Notes and Notes, this Indenture and (B) all obligations of the Issuer under the Security Collateral Documents and each Intercreditor Agreement, subject pursuant to agreements reasonably satisfactory to the Agreed Security PrinciplesTrustee or the Collateral Agent, as applicable, or is liable for those obligations by operation of law;
(iii3) immediately after such transaction, no Default or Event of Default is continuingexists;
(iv4) the Issuer Company or the Person formed by or surviving any such consolidation, merger or amalgamation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, (i) be permitted to incur at least $US$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(aSection 4.08(a); or (ii) have had a Fixed Charge Coverage Ratio not less than the actual Fixed Charge Coverage Ratio for the Company pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.08(a); and
(v5) the Issuer delivers Company shall have delivered to the Trustee and the Collateral Agent an Officer’s Officers’ Certificate and an Opinion of Counsel, in each case, stating that such consolidationmerger, amalgamation, merger consolidation or transfer and, in the case in which a Supplemental Indenture is entered into, and such Supplemental Indenture, supplemental indenture (if any) comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any saleor the Collateral Documents, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasonsas applicable.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with In addition, the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will Company shall not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of lease all or substantially all of the properties or and assets of such Guarantor it and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another any other Person, unless:.
(c) This Section 5.01 will not apply to (i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition of assets does not violate between or among the provisions Company and any one or more of this Indenture its Restricted Subsidiaries or between or among any one or more of the Company’s Restricted Subsidiaries and (including Section 4.09); and
(iiiii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied withany Permitted Tax Reorganization.
(cd) Notwithstanding the provisions of paragraph (bSection 5.01(a)(3) above, (xand Section 5.01(a)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
Appears in 1 contract
Samples: Indenture
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Neither of Parent nor the Issuer will not, directly or indirectly: (1) , consolidate, amalgamate or merge with or into another Person (whether or not Parent or the Issuer is the surviving company or corporationentity), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Parent and its Restricted Subsidiaries Subsidiaries, taken as a whole, in one or more related transactionstransactions to, to another Person, Person unless:
(i1) either: (A) Parent or the Issuer Issuer, as applicable, is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Parent or the Issuer, as applicable) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, limited partnership or limited liability company organized or existing under the laws of the United States, any state thereof or the District of Columbia; provided, however, that if the surviving Person is a limited liability company or limited partnership, there shall be a co-issuer of the Notes that is a corporation; or ;
(B2) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Parent or the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of any Permitted Jurisdiction;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issueras applicable) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has shall have been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all of the obligations of Parent or the Issuer Issuer, as applicable, pursuant to a supplemental indenture under the Notes and this Indenture and (B) assumes all obligations of Parent or the Issuer Issuer, as applicable, under the Security Documents pursuant to such amendments, supplements or other instruments required to be filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by each Intercreditor Agreement, subject to the Agreed Security Principlessuch entity;
(iii3) immediately after such transaction, no Default or Event of Default is continuingexists;
(iv4) Parent or the Issuer Issuer, as applicable, or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Parent or the Issuer, as applicable), or to which such sale, assignment, transfer, lease, conveyance or other disposition has will have been made made:
(A) would have a Total Indebtedness to Consolidated Cash Flow Ratio immediately after the transaction equal to or less than Parent’s Total Indebtedness to Consolidated Cash Flow Ratio immediately preceding the transaction; or
(B) would, on at the date time of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter periodthereto, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(vSection 4.09(a) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuinghereof;
(ii5) either:
(A) Parent or the person acquiring the property in any such sale or disposition Issuer, as applicable, or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all (if other than Parent or the obligations of that Guarantor under its Note GuaranteeIssuer, this Indenture, the Security Documents and each Intercreditor Agreement as applicable) or to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition will have been made, has delivered to the Trustee an Officers’ Certificate and an Opinion of assets does not violate Counsel, each stating that the consolidation, amalgamation, merger, sale, assignment, transfer or other disposition complies with the applicable provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied withsatisfied; provided that in giving an Opinion of Counsel, counsel may rely on an Officers’ Certificate as to any matters of fact, including as to satisfaction of clauses (3) and (4) above;
(6) to the extent any assets or property of Parent or the Issuer, as applicable, or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Parent or the Issuer, as applicable) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, are property or assets of the type that would constitute Collateral, such surviving entity will take such action as may be reasonably necessary or required to cause such property and assets to be made subject to a Lien securing the Notes pursuant to this Indenture, the Security Documents and the First Lien Intercreditor Agreement in the manner and to the extent required by this Indenture or any of the Security Documents and the First Lien Intercreditor Agreement and shall take all reasonably necessary action so that such Lien is perfected, preserved and protected to the extent required by this Indenture, the Security Documents and the First Lien Intercreditor Agreement; and
(7) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Parent or the Issuer, as applicable) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made shall become a party to the Intercreditor Agreements, to the extent then in effect, by joinder or supplement.
(cb) Notwithstanding the provisions of paragraph (b) aboveclauses (3), (x)
4) and (a5) (which do not apply to transactions referred to in this sentence) of Section 5.01(a) hereof, (i) Parent or the Issuer, as applicable, may consolidate or otherwise combine with or merge with a Restricted Subsidiary solely for the purpose of changing the legal domicile of Parent or the Issuer, as applicable, reincorporating Parent or the Issuer, as applicable, in a state of the United States or the District of Columbia, or change the legal form of Parent or the Issuer, as applicable; and (ii) any Restricted Non-Guarantor Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of transfer all or substantially all part of its properties and assets to Parent, the Issuer, any Subsidiary Guarantor or any Non-Guarantor Subsidiary (provided that in the case of both foregoing clauses (i) and (bii), any such consolidation, combination or merger otherwise complies with the foregoing clauses (1), (2), (6) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor7)).
Appears in 1 contract
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer Company will not, directly or indirectly: (1) , consolidate, amalgamate or merge with or into another Person (whether or not the Issuer Company is the surviving company or corporationentity), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Company and its Restricted Subsidiaries Subsidiaries, taken as a whole, in one or more related transactionstransactions to, to another Person, Person unless:
(i) either: (A1) the Issuer Company is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, limited partnership or limited liability company organized or existing under the laws of the United States, any state thereof or the District of Columbia; provided, however, that if the surviving Person is a limited liability company or limited partnership, there shall be a co-issuer of the Notes that is a corporation; or ;
(B2) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of any Permitted Jurisdiction;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has shall have been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the Company’s obligations of the Issuer pursuant to a supplemental indenture under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject to the Agreed Security PrinciplesIndenture;
(iii3) immediately after such transaction, no Default or Event of Default is continuingexists;
(iv4) the Issuer Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition has will have been made made:
(A) would have a Total Indebtedness to Consolidated Cash Flow Ratio immediately after the transaction equal to or less than the Company’s Total Indebtedness to Consolidated Cash Flow Ratio immediately preceding the transaction; or
(B) would, on at the date time of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter periodthereto, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a)Section 4.09(a) hereof; and
(v5) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition Company or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all (if other than the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement Company) or to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition will have been made, has delivered to the Trustee an Officers’ Certificate and an Opinion of assets does not violate Counsel, each stating that the consolidation, amalgamation, merger, sale, assignment, transfer or other disposition complies with the applicable provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied withsatisfied.
(cb) Notwithstanding the provisions of paragraph (b) aboveclauses (3), (x)4) and (5) of Section 5.01(a) hereof,
(a1) the Company may merge with a Restricted Subsidiary solely for the purpose of reincorporating in a state of the United States or the District of Columbia so long as the amount of Indebtedness of the Company and the Restricted Subsidiaries is not increased thereby and
(2) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of transfer all or substantially all part of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate the Company or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are another Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such GuarantorSubsidiary.
Appears in 1 contract
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not the Issuer is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) either: (A) the Issuer is the surviving company or corporation; or (B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of any Permitted Jurisdiction;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor AgreementDocuments, subject to the Agreed Security Principles;
(iii) immediately after such transaction, no Default or Event of Default is continuing;
(iv) the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(v) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, Guarantee and this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, this Indenture, Indenture and the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
Appears in 1 contract
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer Company will not, directly or indirectly: (1indirectly:(i) consolidateamalgamate, amalgamate consolidate or merge with or into another Person (whether or not the Issuer Company is the surviving company or corporation), ; or (2ii) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i1) either: :
(A) the Issuer Company is the surviving company or corporation; or or
(B) the Person formed by or surviving any such consolidationamalgamation, amalgamation consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, a corporation organized or existing under the laws of the United States, any Permitted Jurisdictionstate of the United States, the District of Columbia, Canada or any province or territory of Canada;
(ii2) the Person formed by or surviving any such consolidationamalgamation, amalgamation consolidation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made expressly assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer Company under the Notes and Notes, this Indenture and (B) all obligations of the Issuer under the Security Collateral Documents and each Intercreditor Agreement, subject pursuant to agreements reasonably satisfactory to the Agreed Security PrinciplesTrustee;
(iii3) immediately after such transaction, no Default or Event of Default is continuing;exists; and
(iv4) the Issuer Company or the Person formed by or surviving any such consolidationamalgamation, amalgamation consolidation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made made, would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(vSection 4.09(a) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasonshereof.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with In addition, the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) Company will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of lease all or substantially all of the properties or and assets of such Guarantor it and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another any other Person, unless. This Section 5.01 will not apply to:
(i1) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, an amalgamation or merger assumes all of the obligations Company with an Affiliate solely for the purpose of that Guarantor under its Note Guarantee, this Indenture, reincorporating the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental IndentureCompany in another jurisdiction; or
(B2) such any amalgamation, consolidation or merger, or any sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition of assets does not violate between or among the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate Company and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
Appears in 1 contract
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer Company will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not the Issuer Company is the surviving company or corporation), entity) or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Company and its Restricted Subsidiaries Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless:
(i1) either: (Aa) the Issuer Company is the surviving company or corporation; entity or (Bb) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is (i) an entity incorporated, exempt company with limited liability under the laws of Bermuda or (ii) a corporation or company organized or existing under the laws of any Permitted another Qualified Jurisdiction;
(ii2) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer Company under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject pursuant to agreements satisfactory to the Agreed Security PrinciplesTrustee and the Registration Rights Agreement;
(iii3) immediately after giving effect to such transaction, no Default or Event of Default is continuing;would exist; and
(iv4) the Issuer Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Leverage Ratio test set forth in Section 4.06(a); and
(v) Test. In addition, the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) Company will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of lease all or substantially all of the properties or and assets of such Guarantor it and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(b) A Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate or amalgamate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other than the Company or another Guarantor, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii1) either:
(A) such Guarantor is the person surviving Person; or
(B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, conveyance or other disposition has been made is (i) organized and existing under the laws of the jurisdiction under which such Guarantor was organized, (ii) an exempt company with limited liability under the laws of Bermuda or (iii) a corporation or company organized or existing under the laws of another Qualified Jurisdiction;
(2) the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under this Indenture and its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, Guarantee pursuant to a Supplemental Indenture; orsupplemental indenture satisfactory to the Trustee and under the Registration Rights Agreement;
(B3) immediately after giving effect to such saletransaction, assignmentno Default or Event of Default would exist; and
(4) the Company would, transferon the date of such transaction and after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, leasebe permitted to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio Test; provided, conveyance or other disposition of assets does not violate however, that the provisions of this Indenture (including Section 4.09); andSection 5.01(b) shall not apply if such Guarantor is released from its Note Guarantee pursuant to Section 10.05(a) hereof as a result of such sale, disposition, consolidation, amalgamation or merger.
(iiic) In addition, the Issuer delivers Company may merge or amalgamate with an Affiliate solely for the purpose of reincorporating the Company in any Qualified Jurisdiction without complying with clauses (3) and (4) of Section 5.01(a) hereof; provided that prior to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer andother disposition, the Company has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such consolidation, amalgamation, merger or other disposition and will be subject to federal income tax on the same amounts, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 same manner and that all conditions precedent provided for in this Indenture relating to such transaction at the same times as would have been complied withthe case if such consolidation, amalgamation, merger or other disposition had not occurred.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
Appears in 1 contract
Samples: Indenture (Global Crossing LTD)
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer Company will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not the Issuer Company is the surviving company or corporation), entity) or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i1) either: (Aa) the Issuer Company is the surviving company or corporation; entity or (Bb) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is (i) an entity incorporated, exempt company with limited liability under the laws of Bermuda or (ii) a corporation or company organized or existing under the laws of any Permitted another Qualified Jurisdiction;
(ii2) the First Priority Liens granted to the Collateral Agent under the Collateral Documents in the assets of the Company or the assets subject to such disposition, as the case may be, shall remain in full force and effect and perfected to at least the same extent as in effect immediately prior to such consolidation, amalgamation or merger or such disposition;
(3) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (Ai) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer Company under the Notes and this Indenture pursuant to agreements satisfactory to the Trustee and the Registration Rights Agreement and (Bii) all of the obligations of the Issuer Company under the Security Collateral Documents and each Intercreditor Agreement, subject pursuant to agreements or instruments satisfactory to the Agreed Security PrinciplesTrustee and the Collateral Agent (and shall cause such instruments to be filed and recorded in such jurisdictions and take such other actions as may otherwise be required to comply with the requirements of immediately preceding clause (2));
(iii4) immediately after giving effect to such transaction, no Default or Event of Default is continuing;would exist; and
(iv5) the Issuer Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, (a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Leverage Ratio test set forth in Section 4.06(a); and
(v) the Issuer delivers to the Trustee an Officer’s Certificate Test and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor have a Priority Leverage Ratio no greater than (other than a Guarantor whose Note Guarantee is i) 2.75 to be released in accordance with 1.00, if such transaction occurs on or prior to December 31, 2010, (ii) 2.50 to 1.00, if such transaction occurs on or after January 1, 2011 and on or prior to December 31, 2011, and (iii) 2.25 to 1.00, if such transaction occurs after December 31, 2011 (the terms of “Priority Leverage Ratio Test”). In addition, the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) Company will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of lease all or substantially all of the properties or and assets of such Guarantor it and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(b) A Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate or amalgamate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other than the Company or another Guarantor that is not a Limited Guarantor, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii1) either:
(A) such Guarantor is the person surviving Person; or
(B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, conveyance or other disposition has been made is (i) organized and existing under the laws of the jurisdiction under which such Guarantor was organized, (ii) an exempt company with limited liability under the laws of Bermuda or (iii) a corporation or company organized or existing under the laws of another Qualified Jurisdiction;
(2) the First Priority Liens granted to the Collateral Agent under the Collateral Documents in the assets of such Guarantor or the assets subject to such disposition, as the case may be, shall remain in full force and effect and perfected to at least the same extent as in effect immediately prior to such transfer;
(3) the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes (i) all the obligations of that Guarantor under this Indenture and its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, Guarantee pursuant to a Supplemental Indenture; orsupplemental indenture satisfactory to the Trustee and under the Registration Rights Agreement and (ii) all of the obligations of such Guarantor under the Collateral Documents pursuant to agreements or instruments satisfactory to the Trustee and the Collateral Agent (and shall cause such instruments to be filed and recorded in such jurisdictions and take such other actions as may otherwise be required to comply with the requirements of immediately preceding clause (2));
(B4) immediately after giving effect to such saletransaction, assignmentno Default or Event of Default would exist; and
(5) the Company would, transferon the date of such transaction and after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, lease(a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio Test and (b) have a Priority Leverage Ratio that satisfies the Priority Leverage Ratio Test; provided, conveyance or other disposition of assets does not violate however, that the provisions of this Indenture (including Section 4.09); andSection 5.01(b) shall not apply if such Guarantor is released from its Note Guarantee pursuant to Section 11.05(a) hereof as a result of such sale, disposition, consolidation, amalgamation or merger.
(iiic) In addition, the Issuer delivers Company may merge or amalgamate with an Affiliate solely for the purpose of reincorporating the Company in any Qualified Jurisdiction without complying with clauses (4) and (5) of Section 5.01(a) hereof; provided that prior to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer andother disposition, the Company has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such consolidation, amalgamation, merger or other disposition and will be subject to federal income tax on the same amounts, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 same manner and that all conditions precedent provided for in this Indenture relating to such transaction at the same times as would have been complied withthe case if such consolidation, amalgamation, merger or other disposition had not occurred.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
Appears in 1 contract
Samples: Indenture (Global Crossing LTD)
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer will not, directly or indirectly: (1) Cedar Fair shall not consolidate, amalgamate or merge with or into another Person (whether or not the Issuer Cedar Fair is the surviving company or corporationentity), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the its properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactionstransactions to, to another Person, Person unless:
(i) either: (A) the Issuer Cedar Fair is the surviving company Person or corporation; or (B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCedar Fair) or to which such sale, assignment, transfer, lease, conveyance or other disposition has shall have been made is an entity incorporateda corporation, limited partnership or limited liability company organized or existing under the laws of the United States, any Permitted Jurisdictionstate thereof or the District of Columbia; provided, however, that if the surviving Person is a limited liability company or limited partnership, there shall be a co-issuer of the Notes that is a corporation;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCedar Fair) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has shall have been made assumes (A) by all Cedar Fair’s obligations pursuant to a Supplemental Indenture entered into with supplemental indenture in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and Notes, this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject to the Agreed Security PrinciplesCollateral Documents;
(iii) immediately after such transaction, no Default or Event of Default is continuingexists;
(iv) Cedar Fair or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Cedar Fair) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made: (A) will have a Total Indebtedness to Consolidated Cash Flow Ratio of Cedar Fair immediately after the transaction equal to or less than Cedar Fair’s Total Indebtedness to Consolidated Cash Flow Ratio of Cedar Fair immediately preceding the transaction or (B) would, at the time of such transaction after giving pro forma effect thereto, be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(a) hereof;
(v) Cedar Fair or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Cedar Fair) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that the consolidation, amalgamation, merger, sale, assignment, transfer or other disposition complies with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied; and
(vi) to the extent any assets of the Person which is merged, consolidated or amalgamated with or into Cedar Fair or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Cedar Fair) (the “successor company”) are assets of the type which would constitute Collateral under the Collateral Documents, Cedar Fair or the successor company, as applicable, will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Collateral Documents in the manner and to the extent required in this Indenture or any of the Collateral Documents and shall take all reasonably necessary action required by this Indenture or any of the Collateral Documents so that such Lien is perfected to the extent required by the Collateral Documents. Notwithstanding the foregoing, any Restricted Subsidiary may consolidate, amalgamate or merge with or into or transfer all or part of its properties and assets to Cedar Fair or another Restricted Subsidiary. Notwithstanding the foregoing clauses (iii), (iv) and (v), Cedar Fair may merge with a Restricted Subsidiary solely for the purpose of reincorporating in a state of the United States or the District of Columbia so long as the amount of Indebtedness of Cedar Fair and the Restricted Subsidiaries is not increased thereby.
(b) Each Guarantor or Issuer (other than Cedar Fair) other than any Guarantor or Issuer whose Guarantee or obligation as an Issuer, as the case may be, is to be released in accordance with the terms of this Indenture shall not consolidate, amalgamate or merge with or into (whether or not such Guarantor or Issuer is the surviving entity) any Person other than an Issuer or a Guarantor (in each case, other than in accordance with Section 4.10 hereof) unless:
(i) such Guarantor or Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Guarantor or such Issuer) is a corporation, limited partnership, limited liability company or other entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or the laws of Canada or any province or territory thereof;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Guarantor or such Issuer) assumes all the obligations of such Guarantor or such Issuer, pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee, under the Notes, this Indenture, the applicable Collateral Documents and such Guarantor’s Guarantee, as applicable;
(iii) immediately after such transaction, no Default or Event of Default exists;
(iv) such Guarantor or Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the such Guarantor or such Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(v) the Issuer delivers delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, in each case, stating that such the consolidation, amalgamation, amalgamation or merger or transfer and, in complies with the case in which a Supplemental applicable provisions of this Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iiisatisfied; and
(v) and (iv) to the extent any assets of this Section 5.01(a) shall not apply to any salea Guarantor which is merged, assignment, transfer, lease, conveyance consolidated or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer amalgamated with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all (if other than such Guarantor or an Issuer) (the obligations “successor guarantor”) are assets of that Guarantor the type which would constitute Collateral under its Note Guarantee, this Indenturethe Collateral Documents, the Security Documents successor guarantor will take such action as may be reasonably necessary to cause such property and each Intercreditor Agreement assets to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers be made subject to the Trustee an Officer’s Certificate and Opinion Lien of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, the Collateral Documents in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 manner and that all conditions precedent provided for to the extent required in this Indenture relating or any of the Collateral Documents and shall take all reasonably necessary action required by this Indenture or any of the Collateral Documents so that such Lien is perfected to such transaction have been complied with.
the extent required by the Collateral Documents. provided, however, that clause (civ) Notwithstanding the provisions of paragraph (b) above, will not be applicable to (x)
(ai) any Restricted Subsidiary may consolidateIssuer consolidating with, amalgamate merging or merge with or amalgamating into or sell, assign, transfer, lease, convey or otherwise dispose of transferring all or substantially all part of its properties and assets to any Guarantor other Issuer and (bii) any Guarantor may consolidateconsolidating with, amalgamate merging or merge with or amalgamating into or sell, assign, transfer, lease, convey or otherwise dispose of transferring all or substantially all part of the its properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate Issuer or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such any Guarantor.
Appears in 1 contract
Samples: Indenture (Cedar Fair L P)
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer Company will not, directly or indirectly: (1) , consolidate, amalgamate or merge with or into another Person (whether or not the Issuer Company is the surviving company or corporationentity), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Company and its Restricted Subsidiaries Subsidiaries, taken as a whole, in one or more related transactionstransactions to, to another Person, Person unless:
(i) either: (A1) the Issuer Company is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, limited partnership or limited liability company organized or existing under the laws of the United States, any state thereof or the District of Columbia; provided, however, that if the surviving Person is a limited liability company or limited partnership, there shall be a co-issuer of the Notes that is a corporation; or ;
(B2) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of any Permitted Jurisdiction;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has shall have been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the Company’s obligations of the Issuer pursuant to a supplemental indenture under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject to the Agreed Security PrinciplesIndenture;
(iii3) immediately after such transaction, no Default or Event of Default is continuingexists;
(iv4) the Issuer Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition has will have been made made:
(A) would have a Total Indebtedness to Consolidated Cash Flow Ratio immediately after the transaction equal to or less than the Company’s Total Indebtedness to Consolidated Cash Flow Ratio immediately preceding the transaction; or
(B) would, on at the date time of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter periodthereto, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a)Section 4.09(a) hereof; and
(v5) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition Company or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all (if other than the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement Company) or to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition will have been made, has delivered to the Trustee an Officers’ Certificate and an Opinion of assets does not violate Counsel, each stating that the consolidation, amalgamation, merger, sale, assignment, transfer or other disposition complies with the applicable provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied withsatisfied; provided that in giving an Opinion of Counsel, counsel may rely on an Officers’ Certificate as to any matters of fact, including as to satisfaction of clauses (3) and (4) above.
(cb) Notwithstanding the provisions of paragraph (b) aboveclauses (3), (x)4) and (5) (which do not apply to transactions referred to in this sentence) of Section 5.01(a) hereof,
(a1) the Company may consolidate or otherwise combine with or merge with a Restricted Subsidiary solely for the purpose of changing the legal domicile of the Company reincorporating the Company in a state of the United States or the District of Columbia, or change the legal form of the Company and
(2) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of transfer all or substantially all part of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate the Company or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are another Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such GuarantorSubsidiary.
Appears in 1 contract
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer Company will not, directly or indirectly: (1i) consolidate, amalgamate with or merge with or into another Person (whether or not the Issuer Company is the surviving company or corporation), ; or (2ii) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i1) either: (Ax) the Issuer Company is the surviving company or corporation; or (By) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, a corporation organized or existing under the laws of Canada or any Permitted Jurisdictionprovince or territory thereof, the United States, any state of the United States or the District of Columbia;
(ii2) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all of the obligations of the Issuer Company under the Notes and Notes, this Indenture and (B) all obligations of the Issuer under the Security Documents Registration Rights Agreement pursuant to a supplemental indenture, executed and each Intercreditor Agreement, subject delivered to the Agreed Security PrinciplesTrustee, in a form satisfactory to the Trustee;
(iii3) immediately after such transaction, transaction no Default or Event of Default is continuing;exists; and
(iv4) the Issuer Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made wouldmade, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(vSection 4.09(a) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasonshereof.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) The Company will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of lease all or substantially all of the its properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a wholeassets, in one or more related transactions, to another any other Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant . This Section 5.01 will not apply to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate between or among the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate Company and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties Wholly Owned Restricted Subsidiaries, provided that the surviving entity of any transaction involving the Company shall be a corporation or partnership organized and assets to existing under the laws of Canada or any Guarantor and (b) province or territory thereof, the United States, any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all state of the properties and assets United States or the District of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such GuarantorColumbia.
Appears in 1 contract
Samples: Indenture (Ainsworth Lumber Co LTD)
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not the Issuer is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) either: (A) the Issuer is the surviving company or corporation; or (B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of any Permitted Jurisdiction;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject to the Agreed Security PrinciplesDocuments;
(iii) immediately after such transaction, no Default or Event of Default is continuing;
(iv) the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section Section 4.06(a); and
(v) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (ivClause (iv) of this Section Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply or to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, this Indenture, Indenture and the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section Section 4.09) and any Net Proceeds therefrom are applied as required by this Indenture (including, in the case of the sale of Collateral, Section 3.01(b)); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b(b) above, (x)
(a) any Restricted Subsidiary (other than a Secured Guarantor) may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (provided that such Guarantor is the surviving entity), (b) any Secured Guarantor (other than a Specified Guarantor) may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Secured Guarantor to another Secured Guarantor and (c) any Specified Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Specified Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Specified Guarantor and (y) any Guarantor Restricted Subsidiary (other than a Secured Guarantor) may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such GuarantorRestricted Subsidiary, reincorporating or continuing such Guarantor Restricted Subsidiary in another jurisdiction or changing the legal form of such Restricted Subsidiary. Notwithstanding anything to the contrary set forth herein, the Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation) if the effect of such transaction is to cause (i) the sale, lease, transfer or other conveyance of any assets or property constituting Collateral to any Subsidiary of the Issuer other than a Secured Guarantor or (ii) any Collateral of any Specified Guarantor to be held by any Subsidiary of the Issuer other than a Specified Guarantor.
Appears in 1 contract
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer will shall not, directly or indirectly: (1) consolidatemerge, amalgamate or merge consolidate with or into another Person (whether or not the Issuer is the surviving company or continuing corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(ia) either: (Ai) the Issuer is the surviving company or continuing corporation; or (Bii) the Person formed by or surviving any such consolidation, merger or amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of Canada, any Permitted Jurisdictionprovince or territory of Canada, the United States, any state of the United States or the District of Columbia;
(iib) the Person formed by or surviving or continuing from any such consolidation, merger or amalgamation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made (the “Successor Corporation”) assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer under the Notes and this Indenture or is liable for those obligations by operation of law;
(c) if, upon the occurrence of any such transaction, (x) the Notes would become convertible into securities issued by an issuer other than the resulting, surviving, transferee or successor corporation, and (By) all such resulting, surviving, transferee or successor corporation is a Wholly Owned Subsidiary of the issuer of such securities into which the Notes have become convertible, such other issuer shall fully and unconditionally guarantee on a senior basis the resulting, surviving, transferee or successor corporation’s obligations under the Notes;
(d) each Guarantor, unless such Guarantor is the Person with which the Issuer has entered into a transaction under this Section 11.01, will have confirmed in writing that its Guarantee will continue to apply to the Obligations of the Issuer or the surviving entity under the Security Documents Notes and each Intercreditor Agreement, subject to the Agreed Security Principlesthis Indenture;
(iiie) immediately after such transaction, no Default or Event of Default is continuing;
(iv) the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a)exists; and
(v) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
Appears in 1 contract
Samples: Business Combination Agreement (M3-Brigade Acquisition III Corp.)
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer will Company may not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not the Issuer Company is the surviving company or corporation), ; or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i1) either: :
(A) the Issuer Company is the surviving company or corporation; or or
(B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition has shall have been made is an entity incorporated, organized or a Person existing under the laws of Canada or any Permitted Jurisdictionprovince thereof or the United States, any state thereof or the District of Columbia;
(ii2) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has shall have been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer Company under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject pursuant to the Agreed Security Principlesa supplemental indenture;
(iii3) immediately after such transaction, transaction no Default or Event of Default is continuing;exists; and 85 US-DOCS\113440289.2 10018285.2
(iv4) the Issuer Company or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Issuer), Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has shall have been made wouldwill, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, either (a) be permitted to incur at least $1.00 U.S.$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); andSection 4.3(a) or (b) have a Fixed Charge Coverage Ratio that is equal to or greater than the Fixed Charge Coverage Ratio of the Company immediately before such transaction.
(vb) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) For purposes of this Section 5.01(a) shall not apply to any covenant, the sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets to of one or merger, amalgamation or consolidation more Subsidiaries of the Issuer with Company, which properties or into a Guarantor and clause (iv) assets, if held by the Company instead of this Section 5.01(a) will not apply to any salesuch Subsidiaries, assignment, transfer, lease, conveyance or other disposition of would constitute all or substantially all of the properties or assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than Company on a Guarantor whose Note Guarantee is consolidated basis, shall be deemed to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose transfer of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:the Company.
(ic) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(iiSection 5.1(a)(4) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant will not apply to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate between or among the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate Company and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such GuarantorSubsidiaries.
Appears in 1 contract
Samples: Indenture (Baytex Energy Corp.)
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer Company will not, directly or indirectly: (1i) consolidate, amalgamate with or merge with or into another Person (whether or not the Issuer Company is the surviving company or corporation), ; or (2ii) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, ; unless:
(i1) either: (Ax) the Issuer Company is the surviving company or corporation; or (By) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, a corporation organized or existing under the laws of Canada or any Permitted Jurisdictionprovince or territory thereof, the United States, any state of the United States or the District of Columbia;
(ii2) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all of the obligations of the Issuer Company under the Notes and Notes, this Indenture and (B) all obligations of the Issuer under the Security Documents Registration Rights Agreement pursuant to a supplemental indenture, executed and each Intercreditor Agreement, subject delivered to the Agreed Security PrinciplesTrustee, in a form satisfactory to the Trustee;
(iii3) immediately after such transaction, transaction no Default or Event of Default is continuing;exists; and
(iv4) the Issuer Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerCompany), or to which 70 such sale, assignment, transfer, lease, conveyance or other disposition has been made wouldmade, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(vSection 4.09(a) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasonshereof.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture and any Intercreditor Agreement as provided in Section 10.03) The Company will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of lease all or substantially all of the its properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a wholeassets, in one or more related transactions, to another any other Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant . This Section 5.01 will not apply to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate between or among the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate Company and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)
(a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties Wholly Owned Restricted Subsidiaries, provided that the surviving entity of any transaction involving the Company shall be a corporation organized and assets to existing under the laws of Canada or any Guarantor and (b) province or territory thereof, the United States, any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all state of the properties and assets United States or the District of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such GuarantorColumbia.
Appears in 1 contract
Samples: Indenture (Ainsworth Lumber Co LTD)
Merger, Amalgamation, Consolidation or Sale of Assets. (a) The Issuer will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not the Issuer is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) either: (A) the Issuer is the surviving company or corporation; or (B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity incorporated, organized or existing under the laws of any Permitted Jurisdiction;
(ii) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (A) assumes, by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer under the Notes and this Indenture and (B) all obligations of the Issuer under the Security Documents and each Intercreditor Agreement, subject to the Agreed Security PrinciplesIndenture;
(iii) immediately after such transaction, no Default or Event of Default is continuing;
(iv) the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section Section 4.06(a); and
(v) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii(iii) and (iv(iv) of this Section Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into a Guarantor and clause (iv(iv) of this Section Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger, amalgamation or consolidation of the Issuer with or into an Affiliate solely for the purpose of reincorporating or continuing the Issuer in another jurisdiction for tax reasons.
(b) A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, Guarantee and this Indenture and any Intercreditor Agreement as provided in Section Section 10.03) will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not such Guarantor is the surviving company or corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) immediately after giving effect to that transaction, no Default or Event of Default is continuing;
(ii) either:
(A) the person Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation, amalgamation or merger assumes all the obligations of that Guarantor under its Note Guarantee, Guarantee and this Indenture, the Security Documents and each Intercreditor Agreement to which such Guarantor is a party, pursuant to a Supplemental Indenture; or
(B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.09); and
(iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, amalgamation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b(b) above, (x)
) (a) any Restricted Subsidiary may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate, amalgamate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating or continuing such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
Appears in 1 contract
