Common use of Merger, Consolidation and Sale of All or Substantially All Assets Clause in Contracts

Merger, Consolidation and Sale of All or Substantially All Assets. The Borrower will not consolidate with or merge with or into or wind up into (whether or not the Borrower is the surviving corporation), or convey, transfer or lease all or substantially all its assets (determined on a consolidated basis) in one or more related transactions to, any Person, unless: (a) either (i) the Borrower shall be the surviving corporation or (ii) the resulting, surviving or transferee Person (the “Successor Borrower”) (A) will be a corporation, partnership, trust or limited liability company organized and existing under the laws of the United States of America, any State of the United States or the District of Columbia and the Successor Borrower (if not the Borrower) and (B) will expressly assume, by supplemental agreement, executed and delivered to the Borrower, in form reasonably satisfactory to the Administrative Agent, all the obligations of the Borrower under the Loans, this Agreement, the Intercreditor Agreement and the Security Instruments, and all such obligations shall remain in full force and effect and the Successor Borrower 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 pledged by or transferred to such Person, together with the financing statements and comparable documents as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or a similar document under the UCC or other similar statute or regulation of the relevant states or jurisdictions, in each case in a form reasonably satisfactory to the Administrative Agent and, so long as the Initial Lenders shall constitute the Majority Lenders, the Majority Lenders; (b) immediately after giving effect to such transaction and the assumption contemplated by clause (ii)(B) of paragraph (a) above (including, without limitation, giving effect to any Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred and be continuing; (c) immediately after giving effect to such transaction and the assumption contemplated by clause (ii)(B) of paragraph (a) above (including, without limitation, giving effect to any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction) and the application of any net proceeds therefrom, (i) the Borrower or the Successor Borrower would, on the date of such transaction, after giving pro forma effect thereto and to any related financing transactions as if the same had occurred at the beginning of the applicable four quarter period, be able to Incur at least an additional $1.00 of Debt pursuant to paragraph (n) of Section 9.02 or (ii) the Consolidated Coverage Ratio of the Borrower or the Successor Borrower, as the case may be, is equal to or greater than the Consolidated Coverage Ratio of the Borrower immediately before such transaction; (d) each Guarantor (unless it is the other party to the transactions above, in which case clause (1) shall apply) shall have confirmed in writing that its Guarantee shall apply to such Person’s obligations in respect of this Agreement and the Loans and its obligations under the Intercreditor Agreement and the Security Instruments (if applicable) shall continue to be in effect; and (e) the Borrower or the Successor Borrower, as the case may be, shall have delivered to the Administrative Agent an Officer’s Certificate and an opinion of counsel acceptable to the Administrative Agent, each stating that such consolidation, merger or transfer and, if a supplemental agreement and additional Security Instruments are required in connection with such transaction, such supplemental agreement and Security Instruments comply with the applicable provisions of this Agreement and Security Instruments and that all conditions precedent in this Agreement relating to such transaction have been satisfied; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Borrower. For purposes of this Section 9.11, the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the properties and assets of one or more Restricted Subsidiaries of the Borrower, which properties and assets, if held by the Borrower instead of such Restricted Subsidiaries, would constitute all or substantially all of the properties and assets of the Borrower on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Borrower. The Successor Borrower will succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement, the Intercreditor Agreement and the Security Instruments as if such Successor Borrower had been named in such; and its predecessor Borrower, except in the case of a lease of all or substantially all its assets, will be released from the obligation to pay the principal of and interest on the Loans. Notwithstanding paragraph (c) above, (x) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Borrower and the Borrower may consolidate with, merge into or transfer all or part of its properties and assets to a Wholly-Owned Subsidiary and (y) the Borrower may merge with an Affiliate incorporated solely for the purpose of reincorporating the Borrower in another jurisdiction in the United States; provided that, in the case of a Restricted Subsidiary that consolidates with, merges into or transfers all or part of its properties and assets to the Borrower, the Borrower will not be required to comply with paragraph (e) above. (1) the resulting, surviving or transferee Person will be a corporation, partnership, trust or limited liability company organized and existing under the laws of the United States of America, any State of the United States or the District of Columbia and such Person (if not such Guarantor) will expressly assume, by supplemental agreement and (if required) additional Security Instruments, executed and delivered to the Administrative Agent, all the obligations of such Guarantor under its Guarantee and (2) immediately after giving effect to such transaction (and treating any Debt that becomes an obligation of the resulting, surviving or transferee Person or any Restricted Subsidiary as a result of such transaction as having been Incurred by such Person or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing or (B) the transaction is made in compliance with Section 9.12 and Section 12.02.

Merger, Consolidation and Sale of All or Substantially All Assets. (a) The Borrower will not Company shall not, in a single transaction or series of related transactions, consolidate with or merge with or into or wind up into (whether or not the Borrower is the surviving corporation)any Person, or conveysell, transfer assign, transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company’s assets (determined on a consolidated basisbasis for the Company and the Company’s Restricted Subsidiaries) in one or more related transactions to, to any Person, Person unless: (1) either: (a) either (i) the Borrower Company shall be the surviving corporation or continuing corporation; or (iib) the resultingPerson (if other than the Company) formed by such consolidation or into which the Company is merged or the Person that acquires by sale, surviving assignment, transfer, lease, conveyance or transferee Person other disposition all or substantially all of the Company’s assets (the “Successor BorrowerSurviving Entity”) (Ai) will shall be a corporation, partnership, trust or limited liability company corporation organized and validly existing under the laws of the United States of America, or any State of the United States thereof or the District of Columbia and the Successor Borrower (if not the Borrower) Columbia, and (Bii) will shall expressly assume, by supplemental agreementindenture or other documents or instruments, executed and delivered to the BorrowerTrustee, in form reasonably satisfactory the due and punctual payment of the principal of, and premium, if any, and interest on all of the Securities and the performance of every covenant of the Securities and this Indenture on the part of the Company to the Administrative Agentbe performed or observed, and all the obligations of the Borrower Company under the LoansSecurity Documents, this the Intercreditor Agreement, the Pari Passu Intercreditor and Collateral Agency Agreement (if any) and the Junior Lien Intercreditor Agreement and the Security Instruments, and all such obligations shall remain in full force and effect and the Successor Borrower 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 pledged by or transferred to such Person, together with the financing statements and comparable documents as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or a similar document under the UCC or other similar statute or regulation of the relevant states or jurisdictions, in each case in a form reasonably satisfactory to the Administrative Agent and, so long as the Initial Lenders shall constitute the Majority Lenders, the Majority Lenders(if any); (b2) immediately after giving effect to such transaction and the assumption contemplated by clause (ii)(B1)(b)(ii) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of paragraph such transaction), the Company or such Surviving Entity, as the case may be, (ax) shall be able to incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Fixed Charge Coverage Ratio of the Company would be not less than immediately prior to such transaction and the assumption contemplated by clause (1)(b)(ii) above; (3) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(b)(ii) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred and or be continuing; (c) immediately after giving effect to such transaction and the assumption contemplated by clause (ii)(B) of paragraph (a) above (including, without limitation, giving effect to any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction) and the application of any net proceeds therefrom, (i4) the Borrower Company or the Successor Borrower would, on the date of such transaction, after giving pro forma effect thereto and to any related financing transactions as if the same had occurred at the beginning of the applicable four quarter period, be able to Incur at least an additional $1.00 of Debt pursuant to paragraph (n) of Section 9.02 or (ii) the Consolidated Coverage Ratio of the Borrower or the Successor Borrower, as the case may be, is equal to or greater than the Consolidated Coverage Ratio of the Borrower immediately before such transaction; (d) each Guarantor (unless it is the other party to the transactions above, in which case clause (1) shall apply) shall have confirmed in writing that its Guarantee shall apply to such Person’s obligations in respect of this Agreement and the Loans and its obligations under the Intercreditor Agreement and the Security Instruments (if applicable) shall continue to be in effect; and (e) the Borrower or the Successor Borrower, as the case may be, Surviving Entity shall have delivered to the Administrative Agent Trustee an Officer’s Officers’ Certificate and an opinion Opinion of counsel acceptable to the Administrative AgentCounsel, each stating that such consolidation, merger merger, sale, assignment, transfer, lease, conveyance or transfer other disposition and, if a supplemental agreement and additional Security Instruments indenture or other documents or instruments are required in connection with such transaction, such supplemental agreement indenture, documents or instruments, as applicable, have been duly authorized, executed and Security Instruments delivered are legal, valid and binding agreements enforceable against the Surviving Entity, comply with the applicable provisions of this Agreement and Security Instruments Indenture and that all conditions precedent in this Agreement Indenture relating to such transaction have been satisfied; provided; (5) to the extent any assets of the Person that is consolidated with or merged with or into the Surviving Entity are assets of the type that would constitute Collateral under the Security Documents, however, the Surviving Entity shall take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required in this Indenture or any of the Security Documents and shall take all reasonably necessary action so that such counsel may relyLien is perfected to the extent required by this Indenture and the Security Documents; and (6) the Collateral owned by or transferred to the Surviving Entity shall: (a) continue to constitute Collateral under this Indenture and the Security Documents, (b) be subject to the Lien in favor of the Notes Collateral Agent for the benefit of the Securityholder Secured Parties and (c) not be subject to any Lien other than Permitted Collateral Liens or Permitted Liens, as to matters of factthe case may be, on a certificate or certificates of officers of the Borrowerand other Liens permitted under Section 4.09. For purposes of this Section 9.115.01, the sale, transfer (by lease, conveyance, assignment, transfersale or otherwise, in a single transaction or other disposition series of transactions) of all or substantially all of the properties and or assets of one or more Restricted Subsidiaries of the BorrowerCompany, the Capital Stock of which properties and assets, if held by the Borrower instead of such Restricted Subsidiaries, would constitute constitutes all or substantially all of the properties and assets of the Borrower on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the BorrowerCompany. The Successor Borrower will Notwithstanding the foregoing clauses (2) and (3), the Company may merge with an Affiliate that is a Person that has no material assets or liabilities and that was organized solely for the purpose of reorganizing the Company in another jurisdiction in the United States, any State thereof or the District of Columbia so long as the amount of Indebtedness of the Company is not increased thereby. Upon any consolidation, combination or merger or any transfer of all or substantially all of the assets of the Company in accordance with this Section 5.01 in which the Company is not the surviving or continuing corporation, the Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Borrower Company under this AgreementIndenture, the Intercreditor Agreement Security Documents and the Security Instruments Securities with the same effect as if such Successor Borrower Surviving Entity had been named as such. (b) Each Guarantor (other than any Guarantor whose Guarantee is to be released in such; accordance with the terms of the Guarantee and its predecessor Borrowerthis Indenture in connection with any transaction complying with Section 4.06) shall not, except in and the case of a lease Company shall not cause or permit any Guarantor to, consolidate with or merge with or into any Person other than the Company or any other Guarantor, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all its assets, will be released from the obligation to pay the principal of and interest on the Loans. Notwithstanding paragraph (c) above, (x) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and such Guarantor’s assets to any Person other than the Borrower and the Borrower may consolidate with, merge into Company or transfer all or part of its properties and assets to a Wholly-Owned Subsidiary and (y) the Borrower may merge with an Affiliate incorporated solely for the purpose of reincorporating the Borrower in another jurisdiction in the United States; provided that, in the case of a Restricted Subsidiary that consolidates with, merges into or transfers all or part of its properties and assets to the Borrower, the Borrower will not be required to comply with paragraph (e) above.any other Guarantor unless: (1) the resultingentity formed by or surviving any such consolidation or merger (if other than the Guarantor) or to which such sale, surviving assignment, transfer, lease, conveyance or transferee Person will be other disposition shall have been made is a corporation, partnership, trust or limited liability company corporation organized and existing under the laws of the United States of America, or any State of the United States thereof or the District of Columbia and Columbia; (2) such Person (if not such Guarantor) will expressly assume, entity assumes by supplemental agreement and (if required) additional Security Instruments, executed and delivered to the Administrative Agent, indenture or other documents or instruments all of the obligations of such the Guarantor under its on the Guarantee and the applicable Security Documents, the Intercreditor Agreement, the Pari Passu Intercreditor and Collateral Agency Agreement (2if any) and the Junior Lien Intercreditor Agreement (if any); (3) immediately after giving effect to such transaction (and treating any Debt that becomes an obligation of the resulting, surviving or transferee Person or any Restricted Subsidiary as a result of such transaction as having been Incurred by such Person or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing continuing; (4) to the extent any assets of the Person that is consolidated with or merged with or into such entity are assets of the type that would constitute Collateral under the Security Documents, such entity shall take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required in this Indenture or any of the Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by this Indenture and the Security Documents; (B5) the transaction Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that (x) such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture or any other documents or instruments are required in connection with such transaction, such supplemental indenture, documents or instruments, as applicable, (i) have been duly authorized, executed and delivered, (ii) are legal, valid and binding agreements, enforceable against such entity and (iii) comply with the applicable provisions of this Indenture, and (y) that all conditions precedent in this Indenture relating to such transactions have been satisfied; and (6) the Collateral owned by or transferred to such entity shall (a) continue to constitute Collateral under this Indenture and the Security Documents, (b) be subject to the Lien favor of the Notes Collateral Agent for the benefit of the Securityholder Secured Parties and (c) not be subject to any Lien other than Permitted Liens and other Liens permitted under Section 4.09. Subject to certain limitations described in this Indenture, such entity will succeed to, and be substituted for, such Guarantor under this Indenture, the Security Documents, the Intercreditor Agreement, the Pari Passu Intercreditor and Collateral Agency Agreement, if any, and such Guarantor’s Guarantee. Notwithstanding the foregoing clause (3), any Guarantor may merge with an Affiliate that is made a Person that has no material assets or liabilities and that was organized solely for the purpose of reorganizing the Guarantor in compliance with Section 9.12 another jurisdiction in the United States, any State thereof or the District of Columbia so long as the amount of Indebtedness of the Company and Section 12.02its Restricted Subsidiaries is not increased thereby.

Merger, Consolidation and Sale of All or Substantially All Assets. The Borrower Issuer will not consolidate with or merge with or into or wind up into (whether or not the Borrower Issuer is the surviving corporation), or convey, transfer or lease all or substantially all its assets (determined on a consolidated basis) in one or more related transactions to, any Person, unless: (a1) either (ia) the Borrower Issuer shall be the surviving corporation or (iib) the resulting, surviving or transferee Person (the “Successor BorrowerIssuer”) (Ax) will be a corporation, partnership, trust or limited liability company organized and existing under the laws of the United States of America, any State of the United States or the District of Columbia and the Successor Borrower Issuer (if not the BorrowerIssuer) and (By) will expressly assume, by supplemental agreementindenture, executed and delivered to the BorrowerTrustee, in form reasonably satisfactory to the Administrative AgentTrustee, all the obligations of the Borrower Issuer under the LoansNotes, this Indenture, the Registration Rights Agreement, the Intercreditor Agreement and the Security InstrumentsDocuments, and all such obligations shall remain in full force and effect and the Successor Borrower Issuer 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 pledged by or transferred to such Person, together with the financing statements and comparable documents as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or a similar document under the UCC or other similar statute or regulation of the relevant states or jurisdictions, in each case in a form reasonably satisfactory to the Administrative Agent and, so long as the Initial Lenders shall constitute the Majority Lenders, the Majority LendersTrustee; (b2) immediately after giving effect to such transaction and the assumption contemplated by clause (ii)(B) of paragraph (a1)(b)(y) above (including, without limitation, giving effect to any Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred and be continuing; (c3) immediately after giving effect to such transaction and the assumption contemplated by clause (ii)(B) of paragraph (a1)(b)(y) above (including, without limitation, giving effect to any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction) and the application of any net proceeds therefrom, (iA) the Borrower Issuer or the Successor Borrower Issuer would, on the date of such transaction, after giving pro forma effect thereto and to any related financing transactions as if the same had occurred oc- curred at the beginning of the applicable four quarter period, be able to Incur at least an additional $1.00 of Debt Indebtedness pursuant to the first paragraph (n) of Section 9.02 4.12 or (iiB) the Consolidated Coverage Ratio of the Borrower Issuer or the Successor BorrowerIssuer, as the case may be, is equal to or greater than the Consolidated Coverage Ratio of the Borrower Issuer immediately before such transaction; (d) each Guarantor (unless it is the other party to the transactions above, in which case clause (1) shall apply) shall have confirmed in writing that its Guarantee shall apply to such Person’s obligations in respect of this Agreement and the Loans and its obligations under the Intercreditor Agreement and the Security Instruments (if applicable) shall continue to be in effect; and (e) the Borrower or the Successor Borrower, as the case may be, shall have delivered to the Administrative Agent an Officer’s Certificate and an opinion of counsel acceptable to the Administrative Agent, each stating that such consolidation, merger or transfer and, if a supplemental agreement and additional Security Instruments are required in connection with such transaction, such supplemental agreement and Security Instruments comply with the applicable provisions of this Agreement and Security Instruments and that all conditions precedent in this Agreement relating to such transaction have been satisfied; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Borrower. For purposes of this Section 9.11, the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the properties and assets of one or more Restricted Subsidiaries of the Borrower, which properties and assets, if held by the Borrower instead of such Restricted Subsidiaries, would constitute all or substantially all of the properties and assets of the Borrower on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Borrower. The Successor Borrower will succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement, the Intercreditor Agreement and the Security Instruments as if such Successor Borrower had been named in such; and its predecessor Borrower, except in the case of a lease of all or substantially all its assets, will be released from the obligation to pay the principal of and interest on the Loans. Notwithstanding paragraph (c) above, (x) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Borrower and the Borrower may consolidate with, merge into or transfer all or part of its properties and assets to a Wholly-Owned Subsidiary and (y) the Borrower may merge with an Affiliate incorporated solely for the purpose of reincorporating the Borrower in another jurisdiction in the United States; provided that, in the case of a Restricted Subsidiary that consolidates with, merges into or transfers all or part of its properties and assets to the Borrower, the Borrower will not be required to comply with paragraph (e) above. (1) the resulting, surviving or transferee Person will be a corporation, partnership, trust or limited liability company organized and existing under the laws of the United States of America, any State of the United States or the District of Columbia and such Person (if not such Guarantor) will expressly assume, by supplemental agreement and (if required) additional Security Instruments, executed and delivered to the Administrative Agent, all the obligations of such Guarantor under its Guarantee and (2) immediately after giving effect to such transaction (and treating any Debt that becomes an obligation of the resulting, surviving or transferee Person or any Restricted Subsidiary as a result of such transaction as having been Incurred by such Person or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing or (B) the transaction is made in compliance with Section 9.12 and Section 12.02.