MERGER, CONSOLIDATION, AMALGAMATION OR SALE OF ASSETS. SECTION 4.1. When the Issuer and Guarantors May Merge, Amalgamate or Otherwise Dispose of Assets. (a) The Issuer shall not consolidate, merge or amalgamate with or into or wind up into (whether or not the Issuer is the surviving Person), 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 any Person unless: (i) the Issuer is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia (the Issuer or such Person, as the case may be, being herein called the “Successor Company”) or, if such entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws; (ii) the Successor Company (if other than the Issuer) expressly assumes all the obligations of the Issuer under this Indenture and the Notes pursuant to one or more supplemental indentures or other documents or instruments; (iii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; (iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either: (1) the Issuer (or a Successor Company, if applicable) would be permitted to Incur at least $1.00 of additional Indebtedness as Ratio Debt; or (2) the Fixed Charge Coverage Ratio for the Issuer (or the Successor Company, if applicable) would be equal to or greater than such ratio for the Issuer (or the Successor Company, if applicable) and its Restricted Subsidiaries immediately prior to such transaction; and (v) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture. The Successor Company (if other than the Issuer) shall succeed to, and be substituted for, the Issuer under this Indenture and the Notes, and the Issuer shall automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding clauses (iii) and (iv) above, (A) the Issuer may consolidate or amalgamate with, merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Guarantor, (B) the Issuer may merge, consolidate or amalgamate with an Affiliate of the Issuer solely for the purpose of reincorporating or reorganizing the Issuer in another state or territory of the United States or the District of Columbia, so long as the principal amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not increased thereby (unless such increase is permitted by this Indenture), (C) the Issuer may convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state or territory thereof or the District of Columbia, or, in the case of each of clauses (A), (B) and (C), if the resulting entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws, (D) the Issuer or any Guarantor may change its name and (E) any Restricted Subsidiary may merge, amalgamate or consolidate with the Issuer, provided that the Issuer is the Successor Company in such merger, amalgamation or consolidation. (b) Subject to Section 10.2, each Guarantor shall not, and the Issuer shall not permit any Guarantor to, consolidate, merge or amalgamate with or into or wind up into (whether or not such Guarantor is the surviving corporation), 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, any Person unless: (i) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, limited liability company or trust (or the foreign analog thereof) organized or existing under the laws of the jurisdiction of organization of such Guarantor or the laws of the United States, any state or territory thereof or the District of Columbia, or, in the case of a voluntary Guarantee by a Foreign Subsidiary, the jurisdiction of organization of such Guarantor, or the laws of another jurisdiction so long as the Guarantee provided by such surviving Person under the laws of such other jurisdiction is substantially equivalent to the Guarantee provided under the laws of the jurisdiction of formation of the predecessor Guarantor (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”);
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Samples: Indenture (PPD, Inc.), Indenture (PPD, Inc.)
MERGER, CONSOLIDATION, AMALGAMATION OR SALE OF ASSETS. SECTION 4.1. When the Issuer and Guarantors Issuers May Merge, Amalgamate or Otherwise Dispose of Assets.
(a) The Neither Issuer shall not consolidate, merge or amalgamate with or into or wind up into (whether or not the such Issuer is the surviving Person), 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 any Person (other than the merger, amalgamation or consolidation of one Issuer into the other Issuer) unless:
(i) the such Issuer is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up (if other than the such Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is (or is the foreign analog of) a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia Columbia, the laws of Bermuda, the laws of the United Kingdom or the laws of any member state of the European Union (the such Issuer or such Person, as the case may be, being herein called the “Successor Company”) or); provided that after giving effect to any such consolidation, if such amalgamation, merger, sale, assignment, transfer, lease, conveyance or disposition, an entity that is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, shall be or become the issuer or a co-obligor issuer of the Notes is organized or existing under such lawsNotes;
(ii) the Successor Company (if other than the such Issuer) expressly assumes all the obligations of the such Issuer under this Indenture and the Notes pursuant to one or more supplemental indentures or other documents or instruments;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either:
(1) the Lux Co-Issuer (or a Successor CompanyCompany to the Lux Co-Issuer, if applicable) would be permitted to Incur at least $1.00 of additional Indebtedness as Ratio Debt; or
(2) the Fixed Charge Coverage Ratio for the Lux Co-Issuer (or the Successor Companyor, if applicable, the Successor Company thereto) and its Restricted Subsidiaries would be equal to or greater than such ratio for the Lux Co-Issuer (or the Successor Company, if applicable) and its Restricted Subsidiaries immediately prior to such transaction;
(v) 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
(vvi) the such Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, indentures (if any, ) comply with this Indenture. The Successor Company (if other than the an Issuer) shall succeed to, and be substituted for, the such Issuer under this Indenture and the Notes, and the such Issuer shall automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) above, (A) either of the Issuer Issuers may consolidate or amalgamate with, merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to an Issuer or any Guarantor, (B) either of the Issuer Issuers may merge, consolidate or amalgamate with an Affiliate of the such Issuer solely for the purpose of reincorporating or reorganizing the such Issuer in another state or territory of the United States States, any state or territory thereof or the District of Columbia, Bermuda, the United Kingdom or in any member state of the European Union so long as the principal amount of Indebtedness of the Lux Co-Issuer and its Restricted Subsidiaries is not increased thereby (unless such increase is permitted by this Indenture), (C) the an Issuer may convert into a corporation, partnership, limited partnership, limited liability company or trust trust, or the foreign analog of any of the foregoing entities, organized or existing under the laws of the jurisdiction of organization of the such Issuer or the laws of the United States, any state or territory thereof or the District of Columbia, or; provided that, in the case of each of clauses (A), (B) and (C), if the resulting entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor issuer of the Notes remains in existence or is organized or existing under such laws, (D) the an Issuer or any Guarantor may change its name and (E) any Restricted Subsidiary may merge, amalgamate or consolidate with the Issuer, provided that Lux Co-Issuer so long as the Lux Co-Issuer is the Successor Company in such merger, amalgamation or consolidation.
(b) Subject to Section 10.2Sections 10.2 and 10.5 of this Indenture, each Guarantor shall not, and the Lux Co-Issuer shall not permit any Guarantor such entity to, consolidate, merge or amalgamate with or into or wind up into (whether or not such Guarantor entity is the surviving corporation), 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, any Person unless:
(i) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, partnership or limited liability company or trust (trust, or the foreign analog thereof) of any of the foregoing entities, organized or existing under the laws of the jurisdiction of organization of such Guarantor or the laws of the United States, any state or territory thereof or the District of Columbia, or, in the case laws of a voluntary Guarantee by a Foreign Subsidiary, the jurisdiction of organization of such Guarantor, United Kingdom or the laws of another any member state of the European Union or the laws of any other jurisdiction so long as the a Guarantee provided by such surviving Person under the laws of such other jurisdiction is substantially equivalent to the Guarantee provided under the laws of the jurisdiction of formation of the predecessor Guarantor (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”);
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Samples: Indenture (Ortho Clinical Diagnostics Holdings PLC)
MERGER, CONSOLIDATION, AMALGAMATION OR SALE OF ASSETS. SECTION 4.1. When the Issuer and Guarantors May Merge, Amalgamate or Otherwise Dispose of Assets.
(a) The Issuer shall not consolidate, merge or amalgamate with or into or wind up into into, consummate a Division as the Dividing Person (whether or not the Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to any Person unless:
(i) the Issuer is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or amalgamation, winding up or Division (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia (the Issuer or such Person, as the case may be, being herein called the “Successor Company”) or, if such entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws;
(ii) the Successor Company (if other than the Issuer) expressly assumes all the obligations of the Issuer under this Indenture Indenture, the Notes and the Notes Security Documents pursuant to one or more supplemental indentures or other documents or instruments;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either:
(1) the Issuer (or a the Successor Company, if applicable) would be permitted to Incur at least $1.00 of additional Indebtedness as Ratio Debt; or
(2) the Fixed Charge Coverage Ratio for the Issuer (or the Successor Company, if applicable) and its Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer (or the Successor Company, if applicable) and applicable)and its Restricted Subsidiaries immediately prior to such transaction; and;
(v) 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 that the Security 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;
(vi) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, indentures (if any, ) comply with this Indenture;
(vii) to the extent any property or assets 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 or the Intercreditor Agreements, 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, the Security Documents and the Intercreditor Agreements in the manner and to the extent required by this Indenture or any of the Security Documents or Intercreditor Agreements 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 Intercreditor Agreements;
(viii) 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 its benefit and the benefit of the Trustee and the Holders and (c) not be subject to any Lien other than Permitted Liens or other Liens as permitted under Section 3.5; and
(ix) the Successor Company shall become a party to the ABL Intercreditor Agreement and the Pari Passu Intercreditor Agreement by joinder or supplement. The Successor Company (if other than the Issuer) shall succeed to, and be substituted for, the Issuer under this Indenture Indenture, the Notes and the NotesSecurity Documents and the Intercreditor Agreements, and the Issuer shall automatically be released and discharged from its obligations under this Indenture Indenture, the Notes, the Security Documents and the NotesIntercreditor Agreements. Notwithstanding clauses (iii) and (iv) aboveof the immediately preceding paragraph, (A) the Issuer may consolidate or amalgamate with, merge into into, consummate a Division as the Dividing Person or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Guarantor, (B) the Issuer may merge, consolidate or amalgamate with an Affiliate of the Issuer solely for the purpose of reincorporating or reorganizing the Issuer in another state or territory of the United States or the District of Columbia, so long as the principal amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not increased thereby (unless such increase is permitted by this Indenture), (C) the Issuer may convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state or territory thereof or the District of Columbia, Columbia or, in the case of each of clauses (A), (B) and (C)) of this paragraph, if the resulting entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws, (D) the Issuer or any Guarantor may change its name and (E) any Restricted Subsidiary may merge, amalgamate or consolidate with the Issuer, ; provided that the Issuer is the Successor Company in such merger, amalgamation or consolidation.
(b) Subject to Section 10.2, each Guarantor shall not, and the Issuer shall not permit any Guarantor to, consolidate, merge or amalgamate with or into or wind up into into, consummate a Division as the Dividing Person (whether or not such Guarantor is the surviving corporation), ) 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, any Person unless:
(i) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or amalgamation, winding up or Division (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, limited liability company or trust (or the foreign analog thereof) organized or existing under the laws of the jurisdiction of organization of such Guarantor or the laws of the United States, any state or territory thereof or the District of Columbia, or, in the case of a voluntary Guarantee by a Foreign Subsidiary, the jurisdiction of organization of such Guarantor, or the laws of another jurisdiction so long as the Guarantee provided by such surviving Person under the laws of such other jurisdiction is substantially equivalent to the Guarantee provided under the laws of the jurisdiction of formation of the predecessor Guarantor (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”);
Appears in 1 contract
MERGER, CONSOLIDATION, AMALGAMATION OR SALE OF ASSETS. SECTION 4.1. When the Issuer Issuers and Guarantors May Merge, Amalgamate or Otherwise Dispose of Assets.
(a) The Neither Issuer shall not may consolidate, merge or amalgamate with or into or wind up into (whether or not the such Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to any Person (other than in connection with the Transactions and other than the merger, amalgamation or consolidation of one Issuer into the other Issuer; provided that to the extent the U.S. Co-Issuer merges into the Dutch Co-Issuer, after such merger, any entity that is organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia shall become a co-issuer of the Notes) unless:
(i) the such Issuer is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up (if other than the such Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is (or is the foreign analog of) a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia or the laws of any member country of the European Union (as it is constituted on the Issue Date) (such Issuer or such Person, as the case may be, being herein called the “Successor Company”) orand, if such entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor issuer of the Notes is organized or existing under such laws;
(ii) the Successor Company (if other than the such Issuer) expressly assumes all the obligations of the such Issuer under this Indenture and the Notes pursuant to one or more supplemental indentures or other documents or instruments;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either:
(1) the Dutch Co-Issuer (or a Successor CompanyCompany to the Dutch Co-Issuer, if applicable) would be permitted to Incur at least $1.00 of additional Indebtedness as Ratio Debt; or
(2) the Fixed Charge Coverage Ratio for the Dutch Co-Issuer (or a Successor Company to the Successor CompanyDutch Co-Issuer, if applicable) and its Restricted Subsidiaries would be equal to or greater than such ratio for the Dutch Co-Issuer (or the Successor Company, if applicable) and its Restricted Subsidiaries immediately prior to such transaction;
(v) 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
(vvi) the Dutch Co-Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, indentures (if any, ) comply with this Indenture. The Successor Company (if other than the an Issuer) shall succeed to, and be substituted for, the such Issuer under this Indenture and the Notes, and the such Issuer shall automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) above), (A) either of the Issuer Issuers may consolidate or amalgamate with, merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the other Issuer or any Guarantor, (B) either of the Issuer Issuers may merge, consolidate or amalgamate with an Affiliate of the such Issuer solely for the purpose of reincorporating or reorganizing the such Issuer in another state or territory of the United States States, any state or territory thereof or the District of Columbia, Columbia or in any member country of the European Union (as it is constituted on the Issue Date) so long as the principal amount of Indebtedness of the Dutch Co-Issuer and its Restricted Subsidiaries is not increased thereby (unless such increase is permitted by this Indenture), (C) the an Issuer may convert into a corporation, partnership, limited partnership, limited liability company or trust trust, or the foreign analog of any of the foregoing entities, organized or existing under the laws of the jurisdiction of organization of the such Issuer or the laws of the United States, any state or territory thereof or the District of Columbia, or; provided that, in the case of each of clauses (A), (B) and (C), if the resulting entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor issuer of the Notes remains in existence or is organized or existing under such laws, (D) the either Issuer or any Guarantor may change its name and (E) any Restricted Subsidiary (other than the U.S. Co-Issuer) may merge, amalgamate or consolidate with the either Issuer, ; provided that the such Issuer is the Successor Company in such merger, amalgamation or consolidation.
(b) Subject to Section 10.2, each Guarantor shall not, and the Dutch Co-Issuer shall not permit any Guarantor to, consolidate, merge or amalgamate with or into or wind up into (whether or not such Guarantor is the surviving corporation), 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, any Person (other than in connection with the Transactions) unless:
(i) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, limited liability company or trust (trust, or the foreign analog thereof) of any of the foregoing entities, organized or existing under the laws of the jurisdiction of organization of such Guarantor or the laws of the United States, any state or territory thereof or the District of Columbia, or, in the case of a voluntary Guarantee by a Foreign Subsidiary, the jurisdiction of organization of such Guarantor, Columbia or the laws of another any member country of the European Union (as it is constituted on the Issue Date) or the laws of any other jurisdiction so long as the a Guarantee provided by such surviving Person under the laws of such other jurisdiction is substantially equivalent to the Guarantee provided under the laws of the jurisdiction of formation of the predecessor Guarantor (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”);
Appears in 1 contract
Samples: Indenture (Atotech LTD)
MERGER, CONSOLIDATION, AMALGAMATION OR SALE OF ASSETS. SECTION 4.1. When the Issuer and Guarantors May Merge, Amalgamate or Otherwise Dispose of Assets.
(a) The Issuer shall not Company will not, directly or indirectly: (1) consolidate, merge or amalgamate with or into or wind up into another Person (whether or not the Issuer Company is the surviving Personcorporation), ; or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any Person another Person, unless:
(i1) either:
(A) the Issuer Company is the surviving Person or corporation; or
(B) the Person formed by or surviving any such consolidation, merger, merger or amalgamation or winding up (if other than the IssuerCompany) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made is a corporation, partnership, limited partnership, limited liability company or trust corporation organized or existing under the laws of the United States, any state or territory thereof of the United States or the District of Columbia (the Issuer or such Person, as the case may be, being herein called the “Successor Company”) or, if such entity is not organized or existing under the laws of the United States, Canada or any state province or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such lawsthereof;
(ii2) the Successor Company Person formed by or surviving any such consolidation, merger or amalgamation (if other than the IssuerCompany) expressly or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer Company under the Notes, this Indenture and the Notes Registration Rights Agreement pursuant to one or more supplemental indentures or other documents or instrumentsagreements reasonably satisfactory to the Trustee;
(iii3) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;exists; and
(iv4) immediately The Company or the Person formed by or surviving any such consolidation, merger or amalgamation (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect to such transaction, thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, either:
(1) the Issuer (or a Successor Company, if applicable) would be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof. In addition, the Company will not, directly or indirectly, lease all or substantially all of the properties and assets of it and its Restricted Subsidiaries taken as Ratio Debta whole, in one or more related transactions, to any other Person.
(b) This Section 5.01 will not apply to:
(1) a merger or amalgamation of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction; or
(2) the Fixed Charge Coverage Ratio for the Issuer (or the Successor Company, if applicable) would be equal to or greater than such ratio for the Issuer (or the Successor Company, if applicable) and its Restricted Subsidiaries immediately prior to such transaction; and
(v) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such any consolidation, mergermerger or amalgamation, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture. The Successor Company (if other than the Issuer) shall succeed to, and be substituted for, the Issuer under this Indenture and the Notes, and the Issuer shall automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding clauses (iii) and (iv) above, (A) the Issuer may consolidate or amalgamate with, merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Guarantor, (B) the Issuer may merge, consolidate or amalgamate with an Affiliate of the Issuer solely for the purpose of reincorporating or reorganizing the Issuer in another state or territory of the United States or the District of Columbia, so long as the principal amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not increased thereby (unless such increase is permitted by this Indenture), (C) the Issuer may convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state or territory thereof or the District of Columbia, or, in the case of each of clauses (A), (B) and (C), if the resulting entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws, (D) the Issuer or any Guarantor may change its name and (E) any Restricted Subsidiary may merge, amalgamate or consolidate with the Issuer, provided that the Issuer is the Successor Company in such merger, amalgamation or consolidation.
(b) Subject to Section 10.2, each Guarantor shall not, and the Issuer shall not permit any Guarantor to, consolidate, merge or amalgamate with or into or wind up into (whether or not such Guarantor is the surviving corporation), 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, any Person unless:
(i) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up (if other than such Guarantor) or to which such sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition shall have been made is a corporation, partnership, limited partnership, limited liability company of assets between or trust (among the Company and one or the foreign analog thereof) organized or existing under the laws more of the jurisdiction of organization of such Guarantor or the laws of the United States, any state or territory thereof or the District of Columbia, or, in the case of a voluntary Guarantee by a Foreign Subsidiary, the jurisdiction of organization of such Guarantor, or the laws of another jurisdiction so long as the Guarantee provided by such surviving Person under the laws of such other jurisdiction is substantially equivalent to the Guarantee provided under the laws of the jurisdiction of formation of the predecessor Guarantor (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”);its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Riverside Forest Products Marketing LTD)
MERGER, CONSOLIDATION, AMALGAMATION OR SALE OF ASSETS. SECTION 4.1. When the Issuer and Guarantors May Merge, Amalgamate or Otherwise Dispose of Assets.
(a) The Issuer shall not will not, directly or indirectly:
(i) consolidate, amalgamate or merge or amalgamate with or into or wind up into another Person (regardless of whether or not the Issuer is the surviving Person or one of the Persons that amalgamates with one or more other Persons to form the continuing successor Person), or ; or
(ii) sell, assign, lease, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of the Issuer and its properties or assets Restricted Subsidiaries taken as a whole, in one or more related transactions, to any Person another Person, unless:
(iA) either: (1) the Issuer is the surviving Person (or one of the Persons that amalgamates with one or more other Persons to form the continuing successor Person); or (2) the Person formed by or surviving any such consolidation, merger, amalgamation or winding up 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 shall will have been made is a corporation, partnership, limited partnership, limited liability company or trust a: (i) Person organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia (the Issuer or such Person, as the case may be, being herein called the “Successor Company”) or, if such entity is not organized Canada or existing under the laws of the United States, any state province or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws;
thereof; and (ii) the Successor Company (if other than the Issuer) expressly assumes all the obligations of the Issuer under the Notes, and this Indenture and the Notes by operation of law or pursuant to one or more supplemental indentures or other documents or instrumentsagreements reasonably satisfactory to the Trustee;
(iiiB) immediately after giving effect to such transaction, no Default or Event of Default exists;
(C) other than in connection with, or pursuant to, the Verano Transaction, 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 (and treating any Indebtedness that becomes an obligation if other than the Issuer or one of the Successor Company Persons that amalgamates with one or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by more other Persons to form the Successor Company or such Restricted Subsidiary at the time of such transactioncontinuing successor Person), no Default or Event of Default shall to which such sale, assignment, transfer, conveyance or other disposition will have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either:
(1) the Issuer (or a Successor Company, if applicable) would been made will be permitted to Incur at least $1.00 of additional Indebtedness as Ratio Debt; or
(2) pursuant to the Consolidated Fixed Charge Coverage Ratio for the Issuer test set forth in Section 6.9(a)(i); or (or the Successor Company, if applicable2) would be equal to or greater than such ratio for the Issuer (or the Successor Company, if applicable) and its Restricted Subsidiaries immediately prior after giving effect to such transaction; and
(v) transaction on a pro forma basis and any related financing transactions as if the Issuer shall have delivered to same had occurred at the Trustee an Officer’s Certificate and an Opinion beginning of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture. The Successor Company (if other than the Issuer) shall succeed to, and be substituted forapplicable four quarter period, the Issuer under this Indenture and the Notes, and the Issuer shall automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding clauses (iii) and (iv) above, (A) the Issuer may consolidate or amalgamate with, merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Guarantor, (B) the Issuer may merge, consolidate or amalgamate with an Affiliate Consolidated Fixed Charge Coverage Ratio of the Issuer solely for the purpose of reincorporating or reorganizing the Issuer in another state or territory of the United States or the District of Columbia, so long as the principal amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not increased thereby (unless such increase is permitted by this Indenture), (C) the Issuer may convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state or territory thereof or the District of Columbia, or, in the case of each of clauses (A), (B) and (C), if the resulting entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws, (D) the Issuer or any Guarantor may change its name and (E) any Restricted Subsidiary may merge, amalgamate or consolidate with the Issuer, provided that the Issuer is the Successor Company in such merger, amalgamation or consolidation.
(b) Subject to Section 10.2, each Guarantor shall not, and the Issuer shall not permit any Guarantor to, consolidate, merge or amalgamate with or into or wind up into (whether or not such Guarantor is the surviving corporation), 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, any Person unless:
(i) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up 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 accordance with the Notes and this Indenture (including this covenant); and
(E) the Issuer delivers to the Trustee an Officers’ Certificate (attaching the arithmetic computation to demonstrate compliance with Section 10.1(a)(ii)(C)) certifying that all conditions precedent provided for in this Indenture relating to such transaction have been complied with and an Opinion of Counsel stating that such transaction and, if applicable, such agreement complies with this covenant.
(b) Upon any consolidation, amalgamation or to which such merger, or any sale, assignment, transfer, leaseconveyance or other disposition of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries in accordance with this covenant, the continuing successor Person formed by the consolidation or amalgamation or into which the Issuer is merged or to which the sale, assignment, transfer, conveyance or other disposition shall have been made is a corporationmade, partnershipwill succeed to and be substituted for the Issuer, limited partnership, limited liability company or trust (or the foreign analog thereof) organized or existing under the laws and may exercise every right and power of the jurisdiction of organization of such Guarantor or Issuer under this Indenture with the laws same effect as if the successor had been named as the Issuer therein. When the continuing successor Person assumes all of the United StatesIssuer’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, any state or territory thereof or the District Issuer will be discharged from those obligations; provided, however, that the Issuer shall not be relieved from the obligation to pay the principal of Columbia, or, and interest on the Notes in the case of a voluntary Guarantee by a Foreign Subsidiary, the jurisdiction lease of organization of such Guarantor, all or the laws of another jurisdiction so long as the Guarantee provided by such surviving Person under the laws of such other jurisdiction is substantially equivalent to the Guarantee provided under the laws all of the jurisdiction of formation of the predecessor Guarantor (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”);Issuer’s assets.
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MERGER, CONSOLIDATION, AMALGAMATION OR SALE OF ASSETS. SECTION 4.1. When the Issuer and Guarantors Issuers May Merge, Amalgamate or Otherwise Dispose of Assets.
(a) The Neither Issuer shall not may consolidate, merge or amalgamate with or into or wind up into (whether or not the such Issuer is the surviving Person), 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 any Person unless:
(i) the such Issuer is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up (if other than the such Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, partnership or limited liability company or trust organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia or any territory thereof (the such Issuer or such Person, as the case may be, being herein called the “Successor Company”) orand, if such entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws;
(ii) the Successor Company (if other than the such Issuer) expressly assumes all the obligations of the such Issuer under this Indenture and the Notes pursuant to one or more supplemental indentures or other documents or instruments;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either:
(1) the Issuer Company (or a Successor Company to the Company, if applicable) would be permitted to Incur at least $1.00 of additional Indebtedness as Ratio Debt; or
(2) the Fixed Charge Coverage Ratio for the Issuer Company (or a Successor Company to the Successor Company, if applicable) and its Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer Company (or a Successor Company to the Successor Company, if applicable) and its Restricted Subsidiaries immediately prior to such transaction;
(v) 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
(vvi) the such Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, indentures (if any, ) comply with this Indenture. The Successor Company (if other than the Issuer) shall succeed to, and be substituted for, the such Issuer under this Indenture and the Notes, and the such Issuer shall automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) above, (A) the such Issuer may consolidate or amalgamate with, merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Guarantor, (B) the such Issuer may merge, consolidate or amalgamate with an Affiliate of the Issuer solely for the purpose of reincorporating or reorganizing the such Issuer in another state of the United States, the District of Columbia or any territory of the United States or the District of ColumbiaStates, so long as the principal amount of Indebtedness of the Issuer Company and its Restricted Subsidiaries is not increased thereby (unless such increase is permitted by this Indenture), (C) the such Issuer may convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the such Issuer or the laws of a jurisdiction in the United States, any state or territory thereof or the District of Columbia, or, in the case of each of clauses (A), (B) and (C); provided that, if the resulting such entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws, (D) the either Issuer or any Guarantor may change its name and (E) any Restricted Subsidiary may merge, amalgamate or consolidate with the either Issuer, ; provided that the such Issuer is the Successor Company in such merger, amalgamation or consolidation.
(b) Subject to Section 10.2Sections 10.2 and 10.5, each Guarantor shall not, and the Issuer Company shall not permit any Guarantor to, consolidate, merge or amalgamate with or into or wind up into (whether or not such Guarantor is the surviving corporation), 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, any Person unless:
(i) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, partnership or limited liability company or trust (or the foreign analog thereof) organized or existing under the laws of the jurisdiction of organization of such Guarantor or the laws of the United States, any state or territory thereof or the District of Columbia, or, in the case of a voluntary Guarantee by a Foreign Subsidiary, the jurisdiction of organization of such Guarantor, or the laws of another jurisdiction so long as the Guarantee provided by such surviving Person under the laws of such other jurisdiction is substantially equivalent to the Guarantee provided under the laws of the jurisdiction of formation of the predecessor Guarantor Columbia (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”);
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Samples: Indenture (PPD, Inc.)
MERGER, CONSOLIDATION, AMALGAMATION OR SALE OF ASSETS. SECTION 4.1. When the Issuer and Guarantors May Merge, Amalgamate or Otherwise Dispose of Assets.
(a) The Issuer shall not consolidate, merge or amalgamate with or into or wind up into (whether or not the Issuer is the surviving Person), 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 any Person unless:
(i) the Issuer is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, partnership or limited liability company or trust organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia or any territory thereof (the Issuer or such Person, as the case may be, being herein called the “Successor Company”) orand, if such entity is not (x) a corporation, a co-obligor of the Notes is a corporation organized or existing under such laws and (y) organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws;
(ii) the Successor Company (if other than the Issuer) expressly assumes all the obligations of the Issuer under this Indenture Indenture, the Security Documents and the Notes pursuant to one or more supplemental indentures or other documents or instruments;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either:
(1) the Issuer (or a Successor Company, if applicable) Company would be permitted to Incur at least $1.00 of additional Indebtedness as Ratio Debt; or
(2) the Fixed Charge Coverage Ratio for the Issuer (or the Successor Companyor, if applicable, the Successor Company thereto) and its Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer (or the Successor Company, if applicable) and its Restricted Subsidiaries immediately prior to such transaction; and;
(v) 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 the Security 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;
(vi) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, indentures (if any, ) comply with this Indenture;
(vii) to the extent any property or assets 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;
(viii) 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 Secured Notes 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 or other Liens as permitted under Section 3.5; and
(ix) the Successor Company shall become a party to the ABL Intercreditor Agreement and the Pari Passu Intercreditor Agreement by joinder or supplement. The Successor Company (if other than the Issuer) shall succeed to, and be substituted for, the Issuer under this Indenture Indenture, the Notes and the NotesSecurity Documents, and the Issuer shall automatically be released and discharged from its obligations under this Indenture Indenture, the Notes and the Noteseach Security Document. Notwithstanding the foregoing clauses (iii) and (iv) above, (A) the Issuer may consolidate or amalgamate with, merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Subsidiary Guarantor, (B) the Issuer may merge, consolidate or amalgamate with an Affiliate of the Issuer solely for the purpose of reincorporating or reorganizing the Issuer in another state of the United States, the District of Columbia or any territory of the United States or the District of ColumbiaStates, so long as the principal amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not increased thereby (unless such increase is permitted by this Indenture), (C) the Issuer may convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of a jurisdiction in the United States, any state or territory thereof or the District of Columbia, or, in the case of each of clauses (A), (B) and (C); provided that, if the resulting such entity is not (x) a corporation, a co-obligor of the Notes is a corporation organized or existing under such laws and (y) organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws, (D) the Issuer or any Subsidiary Guarantor may change its name and (E) any Restricted Subsidiary may merge, amalgamate or consolidate with the Issuer, ; provided that the Issuer is the Successor Company in such merger, amalgamation or consolidation.
(b) Subject to Section 10.2Sections 10.2 and 10.5, each Guarantor shall not, and the Issuer shall not permit any Guarantor to, consolidate, merge or amalgamate with or into or wind up into (whether or not such Guarantor is the surviving corporation), 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, any Person unless:
(i) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, partnership or limited liability company or trust (or the foreign analog thereof) organized or existing under the laws of the jurisdiction of organization of such Guarantor or the laws of the United States, any state or territory thereof or the District of Columbia, or, in the case of a voluntary Guarantee by a Foreign Subsidiary, the jurisdiction of organization of such Guarantor, or the laws of another jurisdiction so long as the Guarantee provided by such surviving Person under the laws of such other jurisdiction is substantially equivalent to the Guarantee provided under the laws of the jurisdiction of formation of the predecessor Guarantor Columbia (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”);
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MERGER, CONSOLIDATION, AMALGAMATION OR SALE OF ASSETS. SECTION 4.1. When the Issuer and Guarantors May Merge, Amalgamate or Otherwise Dispose of Assets.
(a) The Issuer shall not consolidate, merge or amalgamate with or into or wind up into (whether or not the Issuer is the surviving Person), 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 any Person (other than the Escrow Merger) unless:
(i) the Issuer is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, partnership or limited liability company or trust organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia or any territory thereof (the Issuer or such Person, as the case may be, being herein called the “Successor Company”) orand, if such entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws;
(ii) the Successor Company (if other than the Issuer) expressly assumes all the obligations of the Issuer under this Indenture and the Notes pursuant to one or more supplemental indentures or other documents or instruments;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either:
(1) the Issuer (or a Successor Company, if applicable) Company would be permitted to Incur at least $1.00 of additional Indebtedness as Ratio Debt; or
(2) the Fixed Charge Coverage Ratio for the Issuer (or the Successor Company, if applicable) CommScope and its Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer (or the Successor Company, if applicable) CommScope and its Restricted Subsidiaries immediately prior to such transaction;
(v) 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
(vvi) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, indentures (if any, ) comply with this Indenture. The Successor Company (if other than the Issuer) shall succeed to, and be substituted for, the Issuer under this Indenture and the Notes, and the Issuer shall automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) above, (A) the Issuer may consolidate or amalgamate with, merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Guarantor, (B) the Issuer may merge, consolidate or amalgamate with an Affiliate of the Issuer solely for the purpose of reincorporating or reorganizing the Issuer in another state of the United States, the District of Columbia or any territory of the United States or the District of ColumbiaStates, so long as the principal amount of Indebtedness of the Issuer CommScope and its Restricted Subsidiaries is not increased thereby (unless such increase is permitted by this Indenture), (C) the Issuer may convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of a jurisdiction in the United States, any state or territory thereof or the District of Columbia, or, in the case of each of clauses (A), (B) and (C); provided that, if the resulting such entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws, (D) the Issuer or any Guarantor may change its name and (E) any Restricted Subsidiary may merge, amalgamate or consolidate with the Issuer, ; provided that the Issuer is the Successor Company in such merger, amalgamation or consolidation.
(b) Subject to Section 10.2Sections 10.2 and 10.5, each Guarantor shall not, and the Issuer CommScope shall not permit any Guarantor to, consolidate, merge or amalgamate with or into or wind up into (whether or not such Guarantor is the surviving corporation), 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, any Person unless:
(i) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, partnership or limited liability company or trust (or the foreign analog thereof) organized or existing under the laws of the jurisdiction of organization of such Guarantor or the laws of the United States, any state or territory thereof or the District of Columbia, or, in the case of a voluntary Guarantee by a Foreign Subsidiary, the jurisdiction of organization of such Guarantor, or the laws of another jurisdiction so long as the Guarantee provided by such surviving Person under the laws of such other jurisdiction is substantially equivalent to the Guarantee provided under the laws of the jurisdiction of formation of the predecessor Guarantor Columbia (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”);
Appears in 1 contract
MERGER, CONSOLIDATION, AMALGAMATION OR SALE OF ASSETS. SECTION 4.1. When the Issuer and Guarantors Issuers May Merge, Amalgamate or Otherwise Dispose of Assets.
(a) The Issuer shall not None of the Company or the Issuers may consolidate, merge or amalgamate with or into or wind up into (whether or not the Company or such Issuer is the surviving Person), 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 any Person unless:
(i) the Company or such Issuer is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up (if other than the Company or such Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia (the Company or such Issuer or such Person, as the case may be, being herein called the “Successor Company”) or, if such entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws;
(ii) the Successor Company (if other than the Company or such Issuer, as applicable) expressly assumes all the obligations of the Issuer Company or such Issuer, as applicable, under this Indenture and and, in the case of such Issuer, the Notes pursuant to one or more supplemental indentures or other documents or instruments;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either:
(1) the Issuer Company (or a Successor Company to the Company, if applicable) would be permitted to Incur at least $1.00 of additional Indebtedness as Ratio Debt; or
(2) the Fixed Charge Coverage Consolidated Total Debt Ratio as of the end of the Applicable Measurement Period for the Issuer Company (or the a Successor Company, if applicable) and its Restricted Subsidiaries is equal to or less than such ratio for the Company (or a Successor Company, if applicable) and its Restricted Subsidiaries immediately prior to such transaction or the Fixed Charge Coverage Ratio as of the end of the Applicable Measurement Period for the Company (or a Successor Company to the Company, if applicable) and its Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer Company (or a Successor Company to the Successor Company, if applicable) and its Restricted Subsidiaries immediately prior to such transaction; and
(v) the Company or such Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, indentures (if any, ) comply with this Indenture. The Successor Company (if other than the Company or an Issuer, as applicable) shall succeed to, and be substituted forfor the Company or such Issuer, the Issuer as applicable, under this Indenture and and, if applicable, the Notes, and the Issuer Company or such Issuer, as applicable, shall automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding clauses (iii) and (iv) above, (A) the Company and such Issuer may consolidate or amalgamate with, merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Guarantor, (B) the Company and such Issuer may merge, consolidate or amalgamate with an Affiliate of the Company or such Issuer solely for the purpose of reincorporating or reorganizing the Company or such Issuer in another state or territory of the United States or the District of Columbia, so long as the principal amount of Indebtedness of the Issuer Company and its Restricted Subsidiaries is not increased thereby (unless such increase is permitted by this Indenture), (C) the Company or such Issuer may convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the such Issuer or the laws of the United States, any state or territory thereof or the District of Columbia, Columbia or, in the case of each of clauses (A), (B) and (C), if the resulting entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws, (D) the either Issuer or any Guarantor may change its name and (E) any Restricted Subsidiary may merge, amalgamate or consolidate with the Company or either Issuer, ; provided that the Company or such Issuer is the Successor Company in such merger, amalgamation or consolidation.
(b) Subject to Section 10.2Sections 10.2 and 10.5, each Guarantor shall not, and the Issuer Company shall not permit any Guarantor to, consolidate, merge or amalgamate with or into or wind up into (whether or not such Guarantor is the surviving corporation), 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, any Person unless:
(i) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, limited liability company or trust (trust, or the foreign analog thereof) , organized or existing under the laws of the jurisdiction of organization of such Guarantor or the laws of the United States, any state or territory thereof or the District of Columbia, Columbia or, in the case of a voluntary Guarantee by a Foreign Subsidiary, the jurisdiction of organization of such Guarantor, or the laws of another jurisdiction so long as the Guarantee provided by such surviving Person under Guarantor, or the laws of such other jurisdiction is are substantially equivalent to the Guarantee provided under the laws of the jurisdiction of formation organization of the predecessor Guarantor (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”);
Appears in 1 contract
Samples: Indenture (PPD, Inc.)
MERGER, CONSOLIDATION, AMALGAMATION OR SALE OF ASSETS. SECTION 4.1. When the Issuer and Guarantors May Merge, Amalgamate or Otherwise Dispose of Assets.
(a) The Issuer shall not will not, directly or indirectly: (i) consolidate, amalgamate or merge or amalgamate with or into another Person; or wind up into (whether or not the Issuer is the surviving Person), or ii) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of it and its Restricted Subsidiaries taken as a whole in one or more related transactions, to any Person another Person, unless:
(i1) either:
(A) the Issuer is the surviving Person or entity; or
(B) the Person formed by or surviving any such consolidation, merger, amalgamation or winding up merger (if other than the Issuer) or to which such sale, assignment, transfer, leaseconveyance or other disposition has been made is a corporation, partnership or limited liability company organized and existing under the laws of the United States, any state of the United States or the District of Columbia;
(2) 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, conveyance or other disposition shall have has been made assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) 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, 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, or at the beginning of the period, as applicable, either (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to either the Fixed Charge Coverage Ratio Test or the Consolidated Net Leverage Ratio Test, (B) have a Fixed Charge Coverage Ratio that is no less than the Fixed Charge Coverage Ratio of the Issuer immediately prior to giving effect to such transaction or (C) have a Consolidated Net Leverage Ratio of the Issuer that is no greater than the Consolidated Net Leverage Ratio of the Issuer immediately prior to giving effect to such transaction.
(b) In addition, the Issuer will not, directly or indirectly, 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 any other Person.
(c) Clauses (3) and (4) of Section 5.01(a) will not apply to:
(1) any consolidation, amalgamation or merger of the Issuer with an Affiliate solely for the purpose of reincorporating the Issuer in another jurisdiction that is a state or territory of the United States or the District of Columbia;
(2) any consolidation, amalgamation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Issuer and its Restricted Subsidiaries;
(3) the conversion of the Issuer into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia (the Issuer or such Person, as the case may be, being herein called the “Successor Company”) or, if such entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws;
(ii) the Successor Company (if other than the Issuer) expressly assumes all the obligations of the Issuer under this Indenture and the Notes pursuant to one or more supplemental indentures or other documents or instruments;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either:
(1) the Issuer (or a Successor Company, if applicable) would be permitted to Incur at least $1.00 of additional Indebtedness as Ratio Debt; or
(2) the Fixed Charge Coverage Ratio for the Issuer (or the Successor Company, if applicable) would be equal to or greater than such ratio for the Issuer (or the Successor Company, if applicable) and its Restricted Subsidiaries immediately prior to such transaction; and
(v) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture. The Successor Company (if other than the Issuer) shall succeed to, and be substituted for, the Issuer under this Indenture and the Notes, and the Issuer shall automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding clauses (iii) and (iv) above, (A) the Issuer may consolidate or amalgamate with, merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Guarantor, (B) the Issuer may merge, consolidate or amalgamate with an Affiliate of the Issuer solely for the purpose of reincorporating or reorganizing the Issuer in another state or territory of the United States or the District of Columbia, so long as the principal amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not increased thereby (unless such increase is permitted by this Indenture), (C) the Issuer may convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state or territory thereof or the District of Columbia, or, in the case of each of clauses (A), (B) and (C), if the resulting entity is not organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia, a co-obligor of the Notes is organized or existing under such laws, (D4) the Issuer or any Guarantor may change its name and (E) any Restricted Subsidiary may merge, amalgamate or consolidate with the Issuer, provided that the Issuer is the Successor Company in such merger, amalgamation or consolidationchanging its name.
(bd) Subject Notwithstanding any of the foregoing, neither the Transactions nor any transactions contemplated thereby shall be subject to this Article V. Any provision in this Indenture applicable to a merger, transfer, consolidation, amalgamation, assignment, sale or transfer, or similar term (including, without limitation, the provisions set forth in the covenants described above under Section 4.16 hereof and this Article V), shall be deemed to apply to a division of or by a limited liability company pursuant to Section 10.2, each Guarantor shall not, and 18-217 of the Issuer shall not permit Delaware Limited Liability Company Act (or any Guarantor to, consolidate, merge or amalgamate with or into or wind up into (whether or not such Guarantor is the surviving corporationanalogous action taken pursuant to applicable law), or sellan allocation of assets arising out of or relating to any such division, assignas if it were a merger, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, merger, amalgamation or winding up (if other than such Guarantor) or to which such saleamalgamation, assignment, sale or transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, limited liability company or trust (or the foreign analog thereof) organized or existing under the laws of the jurisdiction of organization of such Guarantor or the laws of the United States, any state or territory thereof or the District of Columbia, or, in the case of a voluntary Guarantee by a Foreign Subsidiary, the jurisdiction of organization of such Guarantor, or the laws of another jurisdiction so long as the Guarantee provided by such surviving Person under the laws of such other jurisdiction is substantially equivalent to the Guarantee provided under the laws of the jurisdiction of formation of the predecessor Guarantor (such Guarantor or such Personsimilar term, as the case may be, being herein called the “Successor Guarantor”);applicable.
Appears in 1 contract
Samples: Indenture (Primo Brands Corp)
