Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, unless: (1) either: (A) the Company shall be the surviving or continuing corporation; or (B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”): (i) will be an entity organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and (ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observed; (2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; (3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall have occurred or be continuing; (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and (5) the Company or the Successor Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with this Indenture and that all conditions precedent in this Indenture relating to the transaction have been complied with. For purposes of this Section 4.1, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Company. (b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to: (1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary; (2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary; (3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or (4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby. (c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable. (d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (MDC Partners Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
either (A) the Company shall be the surviving or continuing corporation; or
corporation or (B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
) (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or Columbia, and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this the Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction on a pro forma basis and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a4.03; provided, however, that this clause (2) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would shall not be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transactioneffective during any Suspension Period as described under Section 4.22;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted or to be released in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(54) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with this the applicable provisions of the Indenture and that all conditions precedent in this the Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the CompanySubsidiaries, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The No Guarantor (other than any Guarantor whose Subsidiary Guarantee is to be released in accordance with the terms of the Subsidiary Guarantee and the Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2Section 4.12) will, and 4.1(a)(5) above the Company will not apply cause or permit any Guarantor to, consolidate with or merge with or into any Person other than the Company or any other Guarantor unless:
(1) if the Guarantor is a Domestic Restricted Subsidiary the entity formed by or surviving any transfer such consolidation or merger (if other than the Guarantor) is a corporation organized and existing under the laws of the properties United States or assets any State thereof or the District of a Restricted Subsidiary to the Company or to another Restricted SubsidiaryColumbia;
(2) subject such entity expressly assumes by supplemental indenture (in form and substance satisfactory to Section 10.3the Trustee), any merger executed and delivered to the Trustee, the performance of a Restricted Subsidiary into every covenant of the Company Notes and the Indenture on the part of such Guarantor to be performed or another Restricted Subsidiaryobserved;
(3) any merger immediately after giving effect to such transaction, no Default or Event of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; orDefault shall have occurred and be continuing;
(4) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a merger between pro forma basis, the Company and a newly-created Affiliate incorporated solely for could satisfy the purpose provisions of reincorporating clause (a)(2) of this Section 5.01; provided, however, that this clause (4) shall not be effective during any Suspension Period as described under Section 4.22; and
(5) the Company in another State shall have delivered to the Trustee an Officers’ Certificate and Opinion of the United States or in another province or under the federal laws of CanadaCounsel, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by stating that such consolidation or into which merger and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, applicable provisions of the Company under this Indenture and that all conditions precedent in the Notes with the same effect as if Indenture relating to such Successor Company had transaction have been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicablesatisfied.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Neither the Company will notnor the Issuer will, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
either (A) the Company, the Issuer or a Restricted Subsidiary of the Company shall be the surviving or continuing corporation; or
Person or (B) the Person (Person, if other than the Company) , the Issuer or a Restricted Subsidiary of the Company, formed by such consolidation or into which the Company or the Issuer is merged or the Person which that acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and all or substantially all of the Company’s assets determined on a consolidated basis for the Company and its Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
), (ix) will shall be an entity a Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes and Securities, this Indenture and the Registration Rights Agreement (as defined in Appendix A hereto) on the part of the Company or the Issuer, as applicable, to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), either (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness Indebtedness, other than Permitted Indebtedness, pursuant to Section 3.8(a) 4.04 or (B) the Consolidated Leverage Fixed Charge Coverage Ratio of for the Successor Company and its Restricted Subsidiaries or such Surviving Entity, as the case may be, immediately following such transaction would be less equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;; and
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of Company, the Successor Company in respect of this Indenture and the Notes; and
(5) the Company Issuer or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ Officer’s Certificate of the Issuer and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, shall comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction execution of such supplemental indenture have been complied withsatisfied. For purposes of this Section 4.1the foregoing, the transfer (transfer, by lease, assignment, sale or otherwise, in a single transaction or series of transactions) , of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, other than to a Wholly Owned Restricted Subsidiary of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) . Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries or the Issuer, as applicable, in accordance with this Section 4.1the foregoing, in which the Company or the Issuer, as applicable, is not the continuing corporationPerson, the Successor Company successor Person formed by such consolidation or into which the Company or the Issuer, as applicable, is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Issuer, as applicable, under this Indenture and the Notes Securities with the same effect as if such Successor Company Surviving Entity had been named as suchsuch and the Company or the Issuer, as applicable, shall be relieved of all of its obligations and duties under this Indenture and the Securities. For Each Guarantor (other than the avoidance Company), other than any Guarantor whose Guarantee is to be released in accordance with the terms of doubtthe Guarantee and this Indenture, compliance with this Section 4.1 will not, and the Company will not affect cause or permit any such Guarantor to, consolidate with or merge with or into any Person other than the Obligations Company, the Issuer or any other Guarantor unless:
(1) the entity formed by or surviving any such consolidation or merger, if other than such Guarantor, or to which such sale, lease, conveyance or other disposition shall have been made is a Person organized and existing under the laws of the United States or any State thereof or the District of Columbia;
(2) such entity assumes by supplemental indenture all of the obligations of such Guarantor under the Guarantee; and
(3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Any merger or consolidation of a Guarantor (other than the Company) with and into the Company or the Issuer, with the Company or the Issuer being the Surviving Entity, or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company (including a Successor Company, if applicable) under Section 3.21, if applicableneed not comply with this covenant.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Scientific Games Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, ) unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted its Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State state thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
, as the case may be; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (1) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (2)(x) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) 4.12 or (By) in the case of a merger or consolidation with Holdings, shall have a Consolidated Fixed Charge Coverage Ratio equal to or greater than the Consolidated Leverage Fixed Charge Coverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
; (3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitationlimita- tion, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with this Indenture the applicable provisions hereof and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The Each Subsidiary Guarantor (other than any Subsidiary Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2Section 4.16) will not, and 4.1(a)(5) above the Company will not apply cause or permit any Subsidiary Guarantor to:
(1) , consolidate with or merge with or into any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into Person other than the Company or another Restricted Subsidiary;
(3) any merger of the Company into Subsidiary Guarantor that is a Wholly Owned Subsidiary of unless: (a) the Company created for entity formed by or surviving any such consolidation or merger (if other than the purpose of holding Subsidiary Guarantor) is a corporation organized and existing under the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State laws of the United States or in another province any state thereof or under the federal laws District of Canada, so long as, in each case, the Indebtedness Columbia; (b) such entity assumes by execution of a supplemental indenture all of the Company and obligations of the Subsidiary Guarantor under its Restricted Subsidiaries taken as a whole is not increased thereby.
Guarantee; (c) Upon any consolidationimmediately after giving effect to such transaction, combination no Default or merger or any transfer Event of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, Default shall have occurred and be substituted for, continuing; and may exercise every right (d) immediately after giving effect to such transaction and power ofthe use of any net proceeds therefrom on a pro forma basis, the Company under this Indenture and could satisfy the Notes with provisions of clause (ii) of the same effect as if such Successor Company had been named as such. For the avoidance first paragraph of doubt, compliance with this Section 4.1 will not affect the Obligations 5.01. Any merger or consolidation of a Subsidiary Guarantor with and into the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither with the Company nor being the Company surviving entity) or another Subsidiary Guarantor that is a Wholly Owned Subsidiary need only comply with clause (iv) (and its Restricted Subsidiaries taken as a whole may, directly not clauses (i) (ii) or indirectly, lease all or substantially all (iii)) of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Personparagraph (a) of this Section 5.01.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. Each of BI ---------------------------------------- and the Issuer (aeach a "Constituent Entity") The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transferlease, convey or otherwise dispose of) all or substantially all of the properties and Constituent Entity's assets of the Company whether as an entirety or the Company and its Restricted Subsidiaries taken substantially as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company such Constituent Entity shall be the surviving or continuing corporation; or
entity or (B2) the Person or Persons (if other than the Companysuch Constituent Entity) formed by such consolidation or into which the Company such Constituent Entity is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety such Constituent Entity (the “Successor Company”):
(i"Surviving Entity") will shall be an entity a Person or Persons organized and validly existing under the laws of (x) any jurisdiction of the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, (a) in the case of a transaction involving the Issuer, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes and the performance and observance of every covenant and obligation of the Issuer under the Notes and this the Indenture on and the part of the Company Security Documents to be performed or observed;
observed or (2b) immediately after giving effect to such in the case of a transaction involving BI, the Guarantee Obligations and the assumption contemplated by clause other obligations of BI under the Indenture; (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3ii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction)above, no Default or Event of Default shall have occurred or be continuing;
; and (4iii) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) the Company Constituent Entity or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied satisfied. Notwithstanding the preceding sentence, so long as no Default or Event of Default shall have occurred or be continuing, (a) any subsidiary of BI or the Issuer may consolidate with. For purposes of this Section 4.1, the merge into or transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all part of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the its properties and assets of to BI or the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
Issuer; (b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of BI or the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another State of jurisdiction in the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company States; and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties Issuer and assets of the Company and its Restricted Subsidiaries in accordance BI may merge with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicableeach other.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will notIssuer shall not consolidate with, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person)into, or sell, assignconvey, transfer, convey lease or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the properties its property and assets (as an entirety or substantially an entirety in one transaction or a series of the Company related transactions) to, any Person or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), permit any Person to any Person, merge with or into it unless:
(1i) either:
(A) the Company it shall be the surviving continuing Person, or continuing corporation; or
(B) the Person (if other than the Companyit) formed by such consolidation or into which the Company it is merged or the Person which acquires by sale, assignment, transfer, conveyance that acquired or other disposition the properties leased such property and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Person”):
(i) will shall be an entity organized and validly existing under the laws of (x) the United States of America or any State jurisdiction thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by a supplemental indenture (in form reasonably satisfactory to the Trustee)indenture, executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes Issuer’s obligations under this Indenture, the Securities and the performance and observance Registration Rights Agreement; provided that if the Surviving Person (if other than the Issuer) is a limited liability company, business trust or limited partnership, a corporation of every covenant which all of the Notes and Capital Stock is owned by such Person shall be added to this Indenture on the part as a co-issuer of the Company Securities by a supplemental indenture pursuant to be performed or observedwhich such corporation shall act as joint and several obligor with respect to the Securities;
(2ii) each of the conditions specified in clause (c) below is satisfied; and
(iii) each Subsidiary Guarantor, unless such Subsidiary Guarantor is the Person with which the Issuer has entered into a transaction under this Section 5.1, shall have by amendment to its Note Guarantee confirmed that its Note Guarantee shall apply to the obligations of the Issuer or the Surviving Person in accordance with the Securities and this Indenture.
(b) No Subsidiary Guarantor shall consolidate with or merge with or into any Person or permit any Person to merge with or into it unless:
(i) it shall be the continuing Person, or the Person (if other than it) formed by such consolidation or into which it is merged (the “Subsidiary Guarantor Surviving Person”) shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all of such Subsidiary Guarantor obligations under its Note Guarantee and the Registration Rights Agreement; and
(ii) each of the conditions specified in clause (c) below is satisfied. The foregoing requirements of this clause (b) shall not apply to (x) a consolidation or merger of any Subsidiary Guarantor with and into the Issuer or any other Subsidiary Guarantor, so long as the Issuer or such Subsidiary Guarantor survives such consolidation or merger or (y) a sale or other disposition of all of the assets of a Subsidiary Guarantor, by way of merger, consolidation or otherwise, if the Issuer or a Restricted Subsidiary applies the Net Cash Proceeds of that sale or other disposition in accordance with Section 4.17.
(c) The following additional conditions shall apply to each transaction described in clause (a) or (b) above, except that clause (ii) below shall not apply to a transaction described in clause (b) above:
(i) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall have occurred or and be continuing;
(4ii) each Note Guarantor immediately after giving effect to such transaction on a pro forma basis the Issuer (including Persons or the Surviving Person, if applicable) (x) could Incur at least $1.00 of Indebtedness under the first sentence of Section 4.4(a) or (y) would, together with its Restricted Subsidiaries, have a Fixed Charge Coverage Ratio immediately after that become Note Guarantors transaction (after giving pro forma effect thereto as a result of such transaction) has confirmed by supplemental indenture if that its Note Guarantee will apply to transaction had occurred at the Obligations beginning of the Successor Company in respect applicable four-quarter period) that is not less than the Fixed Charge Coverage Ratio of this Indenture the Issuer and the Notesits Restricted Subsidiaries immediately prior to that transaction; and
(5iii) the Company or the Successor Company has Issuer shall have delivered to the Trustee an Officers’ Certificate (attaching the arithmetic computations to demonstrate compliance with clause (c)(ii) above unless compliance therewith is not required) and an Opinion opinion of Counselcounsel, each stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition such transaction and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with the supplemental indentureapplicable provisions of this Indenture, comply with this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. For purposes satisfied and that supplemental indenture is enforceable; provided, however, that clause (c)(ii) above does not apply if, in the good faith determination of this Section 4.1the Board of Directors of the Issuer, whose determination shall be evidenced by a Board Resolution, the transfer (by assignment, sale or otherwise, in a single principal purpose of such transaction or series is to change the state of transactions) of all or substantially all incorporation of the properties or assets Issuer and any such transaction shall not have as one of one or more Restricted Subsidiaries its purposes the evasion of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Companyforegoing limitations.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Verasun Energy Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will notIssuer shall not consolidate with, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person)into, or sell, assignconvey, transfer, convey lease or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the properties its property and assets (as an entirety or substantially an entirety in one transaction or a series of the Company related transactions) to, any Person or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), permit any Person to any Person, merge with or into it unless:
(1i) either:
(A) the Company it shall be the surviving continuing Person, or continuing corporation; or
(B) the Person (if other than the Companyit) formed by such consolidation or into which the Company it is merged or the Person which acquires by sale, assignment, transfer, conveyance that acquired or other disposition the properties leased such property and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Person”):
(i) will shall be an entity organized and validly existing under the laws of (x) the United States of America or any State jurisdiction thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by a supplemental indenture (in form reasonably satisfactory to the Trustee)indenture, executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes obligations under this Indenture, the Securities, the Registration Rights Agreement and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observedSecurity Documents;
(2ii) each of the conditions specified in paragraph (c) below is satisfied; and
(iii) each Subsidiary Guarantor, unless such Subsidiary Guarantor is the Person with which the Issuer has entered into a transaction under this Section 5.1, shall have by amendment to its Note Guarantee confirmed that its Note Guarantee shall apply to the obligations of the Issuer or the Surviving Person in accordance with the Securities and this Indenture.
(b) No Subsidiary Guarantor shall consolidate with or merge with or into any Person or permit any Person to merge with or into it unless:
(i) it shall be the continuing Person, or the Person (if other than it) formed by such consolidation or into which it is merged (the “Subsidiary Guarantor Surviving Person”) shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all of such Subsidiary Guarantor obligations under its Note Guarantee, the Registration Rights Agreement and the Security Documents; and
(ii) each of the conditions specified in paragraph (c) below is satisfied. The foregoing requirements of this paragraph (b) shall not apply to (x) a consolidation or merger of any Subsidiary Guarantor with and into the Issuer or any other Subsidiary Guarantor, so long as the Issuer or such Subsidiary Guarantor survives such consolidation or merger or (y) a sale or other disposition of all of the assets of a Subsidiary Guarantor, by way of merger, consolidation or otherwise, if the Issuer or a Restricted Subsidiary applies the Net Cash Proceeds of that sale or other disposition in accordance with Section 4.18.
(c) The following additional conditions shall apply to each transaction described in paragraph (a) or (b) above, except that clause (ii) below shall not apply to a transaction described in paragraph (b):
(i) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall have occurred or and be continuing;
(4ii) each Note Guarantor immediately after giving effect to such transaction on a pro forma basis the Issuer (including Persons or the Surviving Person, if applicable) (x) could Incur at least $1.00 of Indebtedness under the first paragraph of part (a) of Section 4.4 covenant or (y) would, together with its Restricted Subsidiaries, have a greater Fixed Charge Coverage Ratio immediately after that become Note Guarantors transaction (after giving pro forma effect thereto as if that transaction had occurred at the beginning of the applicable four-quarter period) than the Fixed Charge Coverage Ratio of the Issuer and its Restricted Subsidiaries immediately prior to that transaction; provided that this clause (ii) shall not apply to a result consolidation, merger or sale of all (but not less than all) of the assets of the Issuer if all Liens and Indebtedness of the Issuer (or the Surviving Person) together with the Restricted Subsidiaries of such transaction) has confirmed by supplemental indenture that Person, outstanding immediately after such transaction would have been permitted (and all such Liens and Indebtedness, other than Liens and Indebtedness of such Person and its Note Guarantee will apply Restricted Subsidiaries outstanding immediately prior to the Obligations transaction, shall be deemed to have been Incurred) for all purposes of this Indenture;
(iii) the Issuer or the Surviving Person, as applicable, shall cause such amendments, supplements or other instruments to be filed, executed and/or recorded in such jurisdictions as may be required by applicable law to preserve and protect the Note Liens on the Collateral owned by or sold, conveyed, transferred, leased or otherwise disposed of to such Person, together with such financing statements as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement under the UCC of the Successor Company in respect relevant states;
(iv) the Collateral owned by or sold, conveyed, transferred, leased or otherwise disposed of to the Issuer or such Subsidiary Guarantor or the relevant surviving entity, as applicable, shall
(A) continue to constitute Collateral under this Indenture and the NotesSecurity Documents, and
(B) be subject to the Note Liens, as applicable, in favor of the Collateral Agent for the benefit of the Trustee and the Holders;
(v) the assets of the Person which is merged or consolidated with or into the relevant surviving entity, to the extent that they are assets of the types which would constitute Collateral under this Indenture and the Security Documents, shall be treated as after acquired property and such surviving entity shall take such action as may be reasonably necessary to cause such assets to be made subject to the Note Liens and to perfect such Liens in respect of such assets, in each case, in the manner and to the extent required under the Security Documents; and
(5vi) the Company or the Successor Company has Issuer shall have delivered to the Trustee an Officers’ Certificate (attaching the arithmetic computations to demonstrate compliance with clause (ii) of this paragraph (c) unless compliance therewith is not required) and an Opinion opinion of Counselcounsel, each stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition such transaction and, if a supplemental indenture or supplemental Security Documents are required in connection with such transaction, the such supplemental indenture, indenture and Security Documents comply with the applicable provisions of this Indenture and Indenture, that all conditions precedent in this Indenture relating to the such transaction have been complied with. For purposes satisfied and that supplemental indenture and Security Documents are enforceable; provided, however, that clause (ii) above does not apply if, in the good faith determination of this Section 4.1the Board of Directors, whose determination shall be evidenced by a Board Resolution, the transfer (by assignment, sale or otherwise, in a single principal purpose of such transaction or series is to change the state of transactions) of all or substantially all incorporation of the properties or assets Issuer and any such transaction shall not have as one of one or more Restricted Subsidiaries its purposes the evasion of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Companyforegoing limitations.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Neither the Company will notnor the Issuer will, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
either (A) the Company, the Issuer or a Restricted Subsidiary of the Company shall be the surviving or continuing corporation; or
Person or (B) the Person (Person, if other than the Company) , the Issuer or a Restricted Subsidiary of the Company, formed by such consolidation or into which the Company or the Issuer is merged or the Person which that acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and all or substantially all of the Company’s assets determined on a consolidated basis for the Company and its Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
), (ix) will shall be an entity a Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes and Securities, this Indenture and the Registration Rights Agreement (as defined in Appendix A hereto) on the part of the Company or the Issuer, as applicable, to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), either (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness Indebtedness, other than Permitted Indebtedness, pursuant to Section 3.8(a) 4.04 or (B) the Consolidated Leverage Fixed Charge Coverage Ratio of for the Successor Company and its Restricted Subsidiaries or such Surviving Entity, as the case may be, immediately following such transaction would be less equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;; and
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of Company, the Successor Company in respect of this Indenture and the Notes; and
(5) the Company Issuer or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ Officer’s Certificate of the Issuer and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, shall comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction execution of such supplemental indenture have been complied withsatisfied. For purposes of this Section 4.1the foregoing, the transfer (transfer, by lease, assignment, sale or otherwise, in a single transaction or series of transactions) , of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, other than to a Wholly Owned Restricted Subsidiary of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) . Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries or the Issuer, as applicable, in accordance with this Section 4.1the foregoing, in which the Company or the Issuer, as applicable, is not the continuing corporationPerson, the Successor Company successor Person formed by such consolidation or into which the Company or the Issuer, as applicable, is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Issuer, as applicable, under this Indenture and the Notes Securities with the same effect as if such Successor Company Surviving Entity had been named as suchsuch and the Company or the Issuer, as applicable, shall be relieved of all of its obligations and duties under this Indenture and the Securities. For Each Guarantor (other than the avoidance Company), other than any Guarantor whose Guarantee is to be released in accordance with the terms of doubtthe Guarantee and this Indenture, compliance will not, and the Company will not cause or permit any such Guarantor to, consolidate with or merge with or into any Person other than the Company, the Issuer or any other Guarantor unless:
(1) the entity formed by or surviving any such consolidation or merger, if other than such Guarantor, or to which such sale, lease, conveyance or other disposition shall have been made is a Person organized and existing under the laws of the United States or any State thereof or the District of Columbia;
(2) such entity assumes by supplemental indenture all of the obligations of such Guarantor under the Guarantee; and
(3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Any merger or consolidation of a Guarantor (other than the Company) with and into the Company or the Issuer, with the Company or the Issuer being the Surviving Entity, or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company need not comply with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable5.01.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Scientific Games Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or a series of related transactions, consolidate with or merge with or into any Person (whether or not other than the merger of a Wholly Owned Restricted Subsidiary of the Company is into the surviving or continuing PersonCompany), or sell, assign, transfer, lease, convey or 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 of the Company's properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), ) to any Person, Person whether as an entirety or substantially as an entirety unless:
(1) either:
either (A) the Company shall be the surviving or continuing corporation; or
corporation or (B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s its Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation, partnership, limited liability company or business trust organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and, if applicable, the Registration Rights Agreement on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1) (B) (y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness pursuant to In- debtedness (other than Permitted Indebtedness) in compliance with Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction4.12;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1) (B) (y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(54) the Company or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or and assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will . Notwithstanding the foregoing, this Section shall not apply to:
(1) any transfer of prohibit a transaction, the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the principal purpose of holding which is (as determined in good faith by the Capital Stock Board of Directors of the Company; or
(4) a merger between to change the Company and a newly-created Affiliate incorporated solely for the purpose state of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness incorporation of the Company and such transaction does not have as one of its Restricted Subsidiaries taken as purposes the evasion of the limitations imposed by this Section. When a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially successor assumes all of the properties and assets obligations of the Company under the Notes and its Restricted Subsidiaries this Indenture in accordance with a transaction permitted by this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of5.01, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicablebe deemed to be released from those obligations.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Securities Purchase Agreement (Wilson Greatbatch Technologies Inc)
Merger, Consolidation and Sale of Assets. (a) The Company Parent Guarantor will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole Parent Guarantor (determined on a consolidated basis for the Company and its Restricted Subsidiaries), basis) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
(A) the Company either a Guarantor shall be the surviving or continuing corporation; or
(B) corporation or the Person (if other than the Companya Guarantor) formed by such consolidation or into which the Company Parent Guarantor is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company Parent Guarantor and of the Company’s Restricted Subsidiaries its Subsidiaries, substantially as an entirety (the “Successor CompanySurviving Entity”):
(ia) will shall be an entity organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) Luxembourg, Brazil, the United States or of America, any State state thereof or the District of Columbia or (y) Canada Columbia, or any province or territory thereof other country that does not and will not have any material assets or operations shall become is a co-issuer member country of the NotesEuropean Union or of the Organisation for Economic Co-operation and Development (OECD); and
(iib) will shall expressly assume, by supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company Parent Guarantor, in its capacity as Guarantor, to be performed or observedobserved thereunder (including the payment of Additional Amounts, subject to the same exceptions as set forth under Section 2.06);
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(b) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction)above, no Default or Event of Default shall have occurred or be continuing; and
(3) the surviving Guarantor or the Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied. Notwithstanding anything to the contrary in the foregoing, so long as no event or condition that, with the giving of notice, the lapse of time or failure to satisfy certain specified conditions, or any combination thereof, would constitute an Event of Default under this Indenture or the Notes or an Event of Default will have occurred and be continuing at the time of such proposed transaction or would result therefrom, any merger or consolidation of the Parent Guarantor with an Affiliate organized solely for the purpose of reincorporating the Parent Guarantor in another jurisdiction need only comply with Section 5.01(1) above. Neither the Issuer nor Natura Cosméticos may, and the Parent Guarantor will not cause or permit the Issuer or Natura Cosméticos to, (i) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into the Issuer or Natura Cosméticos (other than a consolidation or merger of the Issuer, a Guarantor or any Subsidiary of a Guarantor with or into the Issuer or Natura Cosméticos), or (ii) directly or indirectly, transfer, sell, lease or otherwise dispose of all or substantially all of its assets (determined on a consolidated basis of the Issuer and its Subsidiaries or Natura Cosméticos and its Subsidiaries, as the case may be) to any Person (other than a Guarantor or any Subsidiary of a Guarantor), unless in the case of each of (i) and (ii):
(1) in the case of a transaction in which the Issuer or Natura Cosméticos, as the case may be, does not survive, the successor entity shall expressly assume, by a supplemental indenture executed and delivered to the Trustee, all of the Issuer’s or Natura Cosméticos’, as the case may be, obligations under this Indenture;
(2) if, as a result of any such transaction, property or assets of the Issuer or Natura Cosméticos, as the case may be, would become subject to a Lien prohibited under Section 4.08, the Issuer or Natura Cosméticos, as the case may be, or the successor entity shall have secured the Notes as described under Section 4.08;
(3) immediately after giving effect to such transaction, no Event of Default will have occurred and be continuing; and
(4) each Note Guarantor (including Persons that become Note Guarantors the Issuer or Natura Cosméticos, as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) the Company or the Successor Company case may be, has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignmentconveyance, transfer, conveyance lease or other disposition acquisition (and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, comply ) complies with this Indenture Section 5.01 and that all conditions precedent provided for in this Indenture relating to the such transaction have been complied with. For purposes of this Section 4.1, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Natura &Co Holding S.A.)
Merger, Consolidation and Sale of Assets. (a) The Company will notNeither the Parent nor either Issuer shall consolidate with, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person)into, or sell, assignconvey, transfer, convey lease or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the properties its property and assets (as an entirety or substantially an entirety in one transaction or a series of the Company related transactions) to, any Person or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), permit any Person to any Person, merge with or into it unless:
(1) either:
(A) the Company Parent or such Issuer, as applicable, shall be the surviving continuing Person, or continuing corporation; or
(B) the Person (if other than the CompanyParent or such Issuer) formed by such consolidation or into which the Company Parent or such Issuer is merged or the Person which acquires by sale, assignment, transfer, conveyance that acquired or other disposition the properties leased such property and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Person”):
(i) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States of America or any State jurisdiction thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by a supplemental indenture (which, in form reasonably satisfactory to the Trusteecase of the Acquisition, shall be the Supplemental Indenture), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes obligations of the Parent or such Issuer, as applicable, under the Indenture, the Securities and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observedRegistration Rights Agreement;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall have occurred or and be continuing;
(3) immediately after giving effect to such transaction on a pro forma basis, the Parent (or the Surviving Person, if applicable) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Parent immediately prior to such transaction;
(4) immediately after giving effect to such transaction on a pro forma basis the Parent (or the Surviving Person, if applicable) could Incur at least $1.00 of Indebtedness under the first paragraph of part (a) of Section 4.4 hereof;
(5) each Note Subsidiary Guarantor, unless such Subsidiary Guarantor (including Persons that become Note Guarantors is the Person with which the Parent or such Issuer, as applicable, has entered into a result of such transaction) has confirmed transaction under this Article 5, shall have, by supplemental indenture amending its Subsidiary Guarantee, confirmed that its Note Subsidiary Guarantee will shall apply to the Obligations obligations of the Successor Company Parent or such Issuer, as applicable, or the Surviving Person in respect of accordance with the Securities and this Indenture and the NotesIndenture; and
(56) the Company Parent or the Successor Company has such Issuer, as applicable, shall have delivered to the Trustee an Officersofficers’ Certificate certificate (attaching the arithmetic computations to demonstrate compliance with clauses (3) and (4) of this paragraph) and an Opinion opinion of Counselcounsel, in each case, stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition such transaction and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with this Indenture and the applicable provisions of the Indenture, that all conditions precedent in this the Indenture relating to the such transaction have been complied withsatisfied and that such supplemental indenture is enforceable; provided, however, that clauses (3) and (4) above do not apply if, in the good faith determination of the Board of Directors of the Parent or such Issuer, as applicable, whose determination shall be evidenced by a Board Resolution, the principal purpose of such transaction is to change the state of incorporation of the Parent or such Issuer and any such transaction shall not have as one of its purposes the evasion of the foregoing limitations. In addition, clauses (3) and (4) above do not apply to the Acquisition.
(b) For purposes of this Section 4.1the foregoing paragraph (a), the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Parent the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Parent, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased therebyParent.
(c) Upon any consolidationNo Subsidiary Guarantor shall consolidate with, combination merge with or merger into, or any transfer sell, convey, transfer, lease or otherwise dispose of all or substantially all of the properties its property and assets (as an entirety or substantially an entirety in one transaction or a series of the Company and its Restricted Subsidiaries in accordance related transactions) to, any Person or permit any Person to merge with this Section 4.1, in which the Company is not or into it unless:
(1) it shall be the continuing corporationPerson, or the Successor Company Person (if other than it) formed by such consolidation or into which the Company it is merged or that acquired or leased such property and assets shall expressly assume, by a supplemental indenture, executed and delivered to which the Trustee, all of such conveyanceSubsidiary Guarantor’s obligations under its Subsidiary Guarantee and the Registration Rights Agreement;
(2) immediately after giving effect to such transaction, lease no Default or transfer is made will succeed to, Event of Default shall have occurred and be substituted forcontinuing; and
(3) the Parent shall have delivered to the Trustee an officers’ certificate and an opinion of counsel, each stating that such transaction and may exercise every right and power ofsuch supplemental indenture comply with the applicable provisions of the Indenture, the Company under that all conditions precedent in this Indenture relating to such transaction have been satisfied and that such supplemental indenture is enforceable. The foregoing requirements of this paragraph (b) shall not apply to (x) a consolidation or merger of any Subsidiary Guarantor with and into the Notes with Parent, either Issuer or any other Subsidiary Guarantor, so long as the same effect Parent, such Issuer or such Subsidiary Guarantor, as if applicable, survives such Successor Company had been named as such. For consolidation or merger or (y) the avoidance of doubtsale, compliance with this Section 4.1 will exchange or transfer, to any Person not affect the Obligations a Subsidiary of the Company (including a Successor CompanyParent, if applicable) under Section 3.21of all of the Parent’s and each Restricted Subsidiary’s Capital Stock in, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its the assets of, a Subsidiary Guarantor in compliance with Section 4.18 hereof. Any merger or their respective properties consolidation of a Subsidiary Guarantor with and into the Parent, either Issuer (with the Parent or assets considered as one enterprise, in one either Issuer being the surviving entity) or more related transactions, to any other Personanother Subsidiary Guarantor that is a Wholly Owned Restricted Subsidiary of the Parent need only comply with clause (vi) of this Section 5.1(a).
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person or consummate a Delaware LLC Division (whether or not the Company is the surviving Person or continuing Personsuccessor, as applicable), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1i) either:
either (A) the Company shall be the surviving or continuing corporation; or
Person or (B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or divided or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
) (ix) will shall be an entity a Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture to this Indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, Trustee the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observed;
(2ii) immediately after giving effect to such transaction on a pro forma basis and the assumption contemplated by Section 501(a)(i)(B)(y) (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), either (x) the Company or such Surviving Entity, as the case may be, shall be able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 407 or (y) the pro forma Consolidated Fixed Charge Coverage Ratio for the Company or such Surviving Entity and its Restricted Subsidiaries would be equal to or greater than the Consolidated Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries immediately prior, and without giving pro forma effect, to such transaction; provided, however, that this clause shall not be effective during any Suspension Period as described under Section 416;
(iii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iiSection 501(a)(i)(B)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted or to be released in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with the supplemental indenture, comply with applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied; For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries, which properties and assets, if held by the Company instead of such Restricted Subsidiaries of the Company, the Capital Stock of which constitutes would constitute all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
Company on a consolidated basis. Notwithstanding the foregoing clauses (b) The provisions of Sections 4.1(a)(2ii) and 4.1(a)(5(iii) above will not apply to:
of Section 501(a), (1) any transfer of the properties or assets of a Restricted Subsidiary may consolidate with or merge with or into or wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company or to another Restricted Subsidiary;
any Guarantor; (2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
any Guarantor may consolidate with, merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company or any Guarantor; (3) any merger the Company may consolidate with or merge with or into or wind up into an Affiliate of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating or reorganizing the Company in another State a state of the United States or in another province or under the federal laws District of Canada, Columbia so long as, in each case, as (i) the amount of Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
thereby and (cii) Upon any consolidation, combination or merger the Surviving Entity complies with subclauses (x) and (y) of Section 501(a)(i)(B); (4) the Company or any transfer of all its Subsidiaries may be converted into, or substantially all reorganized or reconstituted as a limited liability company, limited partnership or corporation in a state of the properties United States or the District of Columbia; and assets of (5) the Company and or a Restricted Subsidiary may change its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicablename.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Phinia Inc.)
Merger, Consolidation and Sale of Assets. (a) The Company will not, Nothing contained in a single transaction this Indenture or series in any of related transactions, consolidate the Securities shall prevent any consolidation or merge merger of the Issuer or the Parent Guarantor with or into any other Person or Persons (whether or not affiliated with the Company is Issuer or the surviving or continuing PersonParent Guarantor, as applicable), or sellsuccessive consolidations or mergers in which the Issuer or the Parent Guarantor, assignor their successor or successors, transfershall be a party or parties, convey or otherwise dispose of (shall prevent any conveyance or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all transfer of the properties and assets of the Company Issuer or the Company and its Restricted Subsidiaries taken Parent Guarantor as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, unless:
(1) either:
(A) the Company shall be the surviving an entirety or continuing corporation; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety to any other Person (whether or not affiliated with the “Successor Company”):
Issuer or the Parent Guarantor, as applicable) lawfully entitled to acquire the same; provided, however, and the Issuer and the Parent Guarantor, as applicable, each hereby covenants and agrees, that upon any such consolidation, merger, conveyance or transfer, (i) will be an entity organized and validly existing under in the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer case of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the TrusteeIssuer, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture to be performed by the Issuer, or, in the case of the Parent Guarantor, the performance of the Guarantee and the performance and observance of every covenant all the covenants and conditions of the Notes and this Indenture on the part of the Company to be performed by the Parent Guarantor, shall be expressly assumed, by indenture supplemental hereto, in form reasonably satisfactory to the Trustee, executed and delivered to the Trustee by the Person (if other than the Issuer or observed;
(2the Parent Guarantor, as the case may be) immediately after giving effect to formed by such transaction and consolidation, or into which the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred Issuer or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanyParent Guarantor, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) shall have been merged, or by the Person which shall have acquired such properties and assets, and (Bii) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) the Company Issuer or the Successor Company has delivered Parent Guarantor, as the case may be, shall deliver to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, conveyance or other disposition and, if required in connection with transfer and such transaction, the supplemental indenture, indenture comply with this Indenture Section 6.04 and that all conditions precedent in this Indenture herein provided for relating to the such transaction have been complied with. For purposes of this Section 4.1with and that it constitutes the legal, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all valid and binding obligation of the properties or assets of one or more Restricted Subsidiaries successor, subject to customary exceptions.
(b) Upon any consolidation of the CompanyIssuer or the Parent Guarantor with, or merger of the Capital Stock of which constitutes all Issuer or substantially all the Parent Guarantor into, any other Person or any conveyance or transfer of the properties and assets of the Company (determined on a consolidated basis for Issuer or the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all Parent Guarantor as an entirety or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries an entirety in accordance with this Section 4.1, in which the Company is not the continuing corporation(a) above, the Successor Company successor Person formed by such consolidation or into which the Company Issuer or the Parent Guarantor is merged or to which such conveyance, lease conveyance or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company Issuer or the Parent Guarantor, as the case may be, under this Indenture and the Notes with the same effect as if such Successor Company successor Person had been named as such. For the avoidance of doubtIssuer or the Parent Guarantor, compliance with this Section 4.1 will not affect as the Obligations of the Company (including a Successor Companycase may be, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither and thereafter the Company nor predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other PersonSecurities.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, of and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture [and the Registration Rights Agreement] on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (1) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (2) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.12; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied satisfied. Notwithstanding the foregoing clauses (ii) and (iii), (a) any Restricted Subsidiary may consolidate with. , merge into or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary and (b) the Company may merge with or transfer all of its properties and assets to an Affiliate incorporated or formed solely for the purpose of either reincorporating or reforming the Company in another State of the United States so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.
(b) For purposes of this Section 4.15.01, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactionstransactions but excluding the creation of any Lien permitted to be incurred pursuant to Section 4.17) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets creation of a Restricted Subsidiary Lien permitted to the Company or to another Restricted Subsidiary;
(2) subject be incurred pursuant to Section 10.3, any merger of 4.17 shall not constitute a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created disposition for the purpose purposes of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable5.01.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (National Vision Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, unless:
(1) either:
(A) the Company shall be the surviving or continuing corporation; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
(i) will be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B2) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) the Company or the Successor Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction have been complied withsatisfied. For purposes of this Section 4.1, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections Section 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiarya Note Guarantor;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (MDC Partners Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company’s properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, Person unless:
(i) either:
(1) either:
(A) the Company shall be is the surviving or continuing corporationPerson; or
(B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
(iA) will be an entity is a corporation or company organized or incorporated and validly existing under the laws of (x) the British Virgin Islands or the United States or of America, any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the NotesColumbia; and
(iiB) will expressly assumeassumes, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant the covenants of the Notes and this the Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3ii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall have has occurred or be is continuing;
(4iii) if the surviving or Continuing Person is not the Company, each Note Subsidiary Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Subsidiary Guarantee will apply to the Obligations obligations of the Successor Company Surviving Entity in respect of this the Indenture and the Notes; and
(5iv) the Company or the Successor Company Surviving Entity has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if required in connection with such transaction, the supplemental indentureindenture(s), if any, comply with this the applicable provisions of the Indenture and that all conditions precedent in this the Indenture relating to the transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The provisions of Sections 4.1(a)(2) and 4.1(a)(5Section 4.1(a)(ii) above will shall not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger consolidation of the Company into a Wholly Owned Subsidiary an Affiliate of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, jurisdiction so long as, in each case, as the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
either (A) the Company or a Restricted Subsidiary of the Company shall be the surviving or continuing corporation; or
Person or (B) the Person (Person, if other than the Company or a Restricted Subsidiary of the Company) , formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties and Company's assets of determined on a consolidated basis for the Company and of the Company’s its Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (indenture, in form 50 reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, of and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes and Securities, this Indenture and the Registration Rights Agreement (as defined in Appendix A hereto) on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness Indebtedness, other than Permitted Indebtedness, pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction4.04;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(54) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, shall comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction execution of such supplemental indenture have been complied withsatisfied. For purposes of this Section 4.1the foregoing, the transfer (transfer, by lease, assignment, sale or otherwise, in a single transaction or series of transactions) , of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, other than to a Wholly Owned Subsidiary that is a Guarantor, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) . Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1the foregoing, in which the Company is not the continuing corporationPerson, the Successor Company successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes Securities with the same effect as if such Successor Company Surviving Entity had been named as suchsuch and the Company shall be relieved of all of its obligations and duties under this Indenture and the Securities. For Each Guarantor, other than any Guarantor whose Guarantee is to be released in accordance with the avoidance terms of doubtthe Guarantee and this Indenture, compliance will not, and the Company will not cause or permit any Guarantor to, consolidate with or merge with or into any Person other than the Company or any other Guarantor unless:
(1) the entity formed by or surviving any such consolidation or merger, if other than the Guarantor, or to which such sale, lease, conveyance or other disposition shall have been made is a Person organized and existing under the laws of the United States or any State thereof or the District of Columbia;
(2) such entity assumes by supplemental indenture all of the obligations of the Guarantor on the Guarantee;
(3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(4) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the Company could satisfy the provisions of clause (2) of the first paragraph of this Section 5.01. Any merger or consolidation of a Guarantor with and into the Company, with the Company being the Surviving Entity, or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company need not comply with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable5.01.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Scientific Games Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will Each Issuer shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of the Issuers to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of such Issuer's assets (determined, in the properties and assets case of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined Company, on a consolidated basis for the Company and its the Company's Restricted Subsidiaries), ) whether as an entirely or substantially as an entirety to any Person, Person unless:
(1i) either:
either (A) the Company such Issuer shall be the surviving or continuing corporation; or
corporation or (B) the Person (if other than the Companysuch Issuer) formed by such consolidation or into which the Company such Issuer is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company such Issuer and of the Company’s its Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"SURVIVING ENTITY"): (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia (or, in the case of a merger, amalgamation, continuation, consolidation or sale involving Sport Maska Inc., Canada or any Political subdivision thereof); and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment (as primary obligor or as guarantor, as the case may be) of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and the Registration Rights Agreement on the part of such Issuer or the Company Subsidiary Issuer, as the case may be, to be performed or observed;
(2ii) immediately after giving effect to such transaction and the assumption contemplated by clause CLAUSE (1)(B)(iia)(i)(b)(y) above of this SECTION 5.01 (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (Aa) the Company such Issuer or such Successor CompanySurviving Entity, as the case may be, is shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of such Issuer immediately prior to such transaction and (b) the Company shall be able to Incur incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a(other than Permitted Indebtedness) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transactionin compliance with SECTION 4.12;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause CLAUSE (1)(B)(iia)(i)(b)(y) above of this SECTION 5.01 (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company such Issuer or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if required in connection complies with such transaction, the supplemental indenture, comply with applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Companyan Issuer, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)that Issuer, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary that Issuer. Notwithstanding anything in this SECTION 5.01 to the Company contrary, such Issuer may merge with an Affiliate that has no material assets or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company liabilities and that is incorporated or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated organized solely for the purpose of reincorporating the Company or reorganizing such Issuer in another State state of the United States or the District of Columbia, in another province the case of the Company, or under the federal laws of in Canada, so long asor any political subdivision thereof, in each case, the Indebtedness case of the Company and its Restricted Subsidiaries taken as a whole is not increased therebySubsidiary Issuer, without complying with CLAUSE (a)(ii) of this SECTION 5.01.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Hockey Co)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or a series of related transactions, consolidate with or merge with or into any Person (whether or not the Company is the surviving or continuing Person)into, or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the properties and its assets of the Company to, another Person or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, Persons unless:
(1i) either:
either (A) the Company shall be the surviving survivor of such merger or continuing corporation; or
consolidation or (B) the surviving Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
(i) will be an entity organized and validly a corporation existing under the laws of (x) the United States or States, any State state thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if and such surviving Person shall expressly assume by Supplemental Indenture all the Successor obligations of the Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) Notes, this Indenture and the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; andRegistration Rights Agreement;
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtednessbasis, including any Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or such transaction and the other adjustments referred to in respect the definition of such transaction"Consolidated Fixed Charge Coverage Ratio"), (A) the Company or such Successor Company, as the case may be, surviving Person is able to Incur incur at least $1.00 of additional Indebtedness pursuant to (other than Permitted Indebtedness) in compliance with Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction4.3;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred and any Lien granted incurred in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, conveyance merger or other disposition and, if required in connection with such transaction, the supplemental indenture, comply transfer complies with this Indenture Indenture, that the surviving Person agrees to be bound thereby and by the Notes and the Registration Rights Agreement, and that all conditions precedent in this Indenture relating to the such transaction have been complied withsatisfied including (in the case of the Officers' Certificate) the calculations required by clause (ii) above. For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or and assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
. Notwithstanding the foregoing clauses (b) The provisions of Sections 4.1(a)(2ii) and 4.1(a)(5(iii) above will not apply to:
above, (1a) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose may consolidate with, merge into or transfer all or part of holding the Capital Stock of the Company; or
(4) a merger between its properties and assets to the Company and (b) the Company may merge with an Affiliate that is (x) a newly-created Affiliate corporation that has no material assets or liabilities and which was incorporated solely for the purpose of reincorporating the Company in another State jurisdiction or (y) a Restricted Subsidiary of the Company so long as all assets of the Company and the Restricted Subsidiaries immediately prior to such transaction are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof.
(b) Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Section 4.6) will not, and the Company will not cause or permit any Guarantor to, consolidate with or merge with or into any Person other than the Company or any other Guarantor unless: (i) the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) or to which such sale, lease, conveyance or other disposition shall have been made is a corporation organized and existing under the laws of the United States or any State thereof or the District of Columbia; (ii) such entity (if other than the Guarantor) assumes by supplemental indenture all of the obligations of the Guarantor on the Guarantee; (iii) immediately before and immediately after giving effect to such transaction (including any Indebtedness incurred or anticipated to be incurred in another province connection with the transaction), no Default or under Event of Default shall have occurred and be continuing; and (iv) immediately after giving effect to such transaction on a pro forma basis (including any Indebtedness incurred or anticipated to be incurred in connection with the federal laws of Canada, so long as, in each casetransaction), the Indebtedness Company could satisfy the provisions of clause (ii) of the first paragraph under paragraph (a) of this Section 5.1. Any merger or consolidation of a Guarantor with and into the Company (with the Company being the surviving entity) or another Guarantor that is a Restricted Subsidiary of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
need only comply with clause (civ) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets first paragraph under paragraph (a) of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable5.1.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will notIssuer shall not consolidate with, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person)into, or sell, assignconvey, transfer, convey lease or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the properties its property and assets (as an entirety or substantially an entirety in one transaction or a series of the Company related transactions) to, any Person or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), permit any Person to any Person, merge with or into it unless:
(1i) either:
(A) the Company it shall be the surviving continuing Person, or continuing corporation; or
(B) the Person (if other than the Companyit) formed by such consolidation or into which the Company it is merged or the Person which acquires by sale, assignment, transfer, conveyance that acquired or other disposition the properties leased such property and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
(i"Surviving Person") will shall be an entity organized and validly existing under the laws of (x) the United States of America or any State jurisdiction thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by a supplemental indenture (in form reasonably satisfactory to the Trustee)indenture, executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes Issuer's obligations under this Indenture, the Securities, the Registration Rights Agreement and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observedSecurity Documents;
(2ii) each of the conditions specified in clause (c) below is satisfied; and
(iii) each Subsidiary Guarantor, unless such Subsidiary Guarantor is the Person with which the Issuer has entered into a transaction under this Section 5.1, shall have by amendment to its Note Guarantee confirmed that its Note Guarantee shall apply to the obligations of the Issuer or the Surviving Person in accordance with the Securities and this Indenture.
(b) No Subsidiary Guarantor shall consolidate with or merge with or into any Person or permit any Person to merge with or into it unless:
(i) it shall be the continuing Person, or the Person (if other than it) formed by such consolidation or into which it is merged (the "Subsidiary Guarantor Surviving Person") shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all of such Subsidiary Guarantor obligations under its Note Guarantee, the Registration Rights Agreement and the Security Documents; and
(ii) each of the conditions specified in clause (c) below is satisfied. The foregoing requirements of this clause (b) shall not apply to (x) a consolidation or merger of any Subsidiary Guarantor with and into the Issuer or any other Subsidiary Guarantor, so long as the Issuer or such Subsidiary Guarantor survives such consolidation or merger or (y) a sale or other disposition of all of the assets of a Subsidiary Guarantor, by way of merger, consolidation or otherwise, if the Issuer or a Restricted Subsidiary applies the Net Cash Proceeds of that sale or other disposition in accordance with Section 4.17.
(c) The following additional conditions shall apply to each transaction described in clause (a) or (b) above, except that clause (ii) below shall not apply to a transaction described in clause (b) above:
(i) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall have occurred or and be continuing;
(4ii) each immediately after giving effect to such transaction on a pro forma basis the Issuer (or the Surviving Person, if applicable) (x) could Incur at least $1.00 of Indebtedness under the first sentence of clause (a) of Section 4.4 or (y) would, together with its Restricted Subsidiaries, have a greater Fixed Charge Coverage Ratio immediately after that transaction (after giving pro forma effect thereto as if that transaction had occurred at the beginning of the applicable four-quarter period) than the Fixed Charge Coverage Ratio of the Issuer and its Restricted Subsidiaries immediately prior to that transaction;
(iii) the Issuer or such Subsidiary Guarantor or the relevant surviving entity, as applicable, shall cause such amendments, supplements or other instruments to be filed, executed and/or recorded in such jurisdictions as may be required by applicable law to preserve and protect the Note Guarantor Liens and, if applicable, the Parity Liens on the Collateral owned by or sold, conveyed, transferred, leased or otherwise disposed of to such Person, together with such financing statements as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement under the UCC of the relevant states;
(including Persons that become Note Guarantors as a result iv) the Collateral owned by or sold, conveyed, transferred, leased or otherwise disposed of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of Issuer or such Subsidiary Guarantor or the Successor Company in respect of relevant surviving entity, as applicable, shall (a) continue to constitute Collateral under this Indenture and the NotesSecurity Documents, and (b) be subject to the Note Liens, as applicable, in favor of the Joint Collateral Agent for the benefit of the Trustee and the Holders, subject to Liens in favor of and for the benefit of the holders of any Parity Lien Indebtedness and the Parity Lien Representative;
(v) the assets of the Person which is merged or consolidated with or into the relevant surviving entity, to the extent that they are assets of the types which would constitute Collateral under this Indenture and the Security Documents, shall be treated as after acquired property and such surviving entity shall take such action as may be reasonably necessary to cause such assets to be made subject to the Note Liens and, if applicable, the Parity Liens and to perfect such Liens in respect of such assets, in each case, in the manner and to the extent required under the Security Documents; and
(5vi) the Company or the Successor Company has Issuer shall have delivered to the Trustee an Officers’ ' Certificate (attaching the arithmetic computations to demonstrate compliance with clause (c)(ii) above unless compliance therewith is not required) and an Opinion opinion of Counselcounsel, each stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition such transaction and, if a supplemental indenture or supplemental Security Documents are required in connection with such transaction, the such supplemental indenture, indenture and Security Documents comply with the applicable provisions of this Indenture and Indenture, that all conditions precedent in this Indenture relating to the such transaction have been complied with. For purposes satisfied and that supplemental indenture and Security Documents are enforceable; provided, however, that clause (c)(ii) above does not apply if, in the good faith determination of this Section 4.1the Board of Directors, whose determination shall be evidenced by a Board Resolution, the transfer (by assignment, sale or otherwise, in a single principal purpose of such transaction or series is to change the state of transactions) of all or substantially all incorporation of the properties or assets Issuer and any such transaction shall not have as one of one or more Restricted Subsidiaries its purposes the evasion of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Companyforegoing limitations.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Verasun Energy Corp)
Merger, Consolidation and Sale of Assets. (a) The Company Issuer will not, in a single transaction or series of related transactions, not consolidate with or merge with or into any Person or wind up into (whether or not the Company Issuer is the surviving or continuing Personcorporation), or sellconvey, assign, transfer, convey transfer or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) lease all or substantially all of the properties and its assets of the Company in one or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries)more related transactions to, to any Person, unless:
(1) either:
(A) the Company shall be the resulting, surviving or continuing corporation; or
(B) the transferee Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanyIssuer”):
(i) will be an entity a corporation, partnership, trust or limited liability company organized and validly existing under the laws of (x) the United States or of America, any State thereof of the United States or the District of Columbia or (y) Canada or any province or territory thereof; provided that if and the Successor Company is Issuer (if not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(iiIssuer) will expressly assume, (i) by supplemental indenture (in form reasonably satisfactory to the Trustee)indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the due and punctual payment Trustee, all the obligations of the principal ofIssuer under the Note Documents and (ii) to the extent that the exchange offers (or filing of the registration statement) pursuant to the applicable Registration Rights Agreements have not been consummated or filed, as applicable, by joinder, amendment, supplement or other instrument, executed and delivered to the Trustee, all obligations of the Issuer under the applicable Registration Rights Agreements, and premium (including the Successor Issuer shall cause such amendments, supplements or other instruments to be executed, filed and recorded in such jurisdiction as may be required by applicable law to preserve and protect the Note 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 Additional Amounts), if any, and interest on all 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 Notes and relevant states or jurisdictions, in each case in a form reasonably satisfactory to the performance and observance of every covenant Trustee; provided, that if the Successor Issuer is not a corporation, such Successor Issuer shall form a corporate co-issuer for the Notes, which shall assume all Note Obligations of the Notes and this Indenture on the part of the Company to be performed or observed;Issuer.
(2) immediately after giving effect to such transaction (and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to treating any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio that becomes an obligation of the Successor Company and its Restricted Subsidiaries would be less than such ratio for Issuer or any Subsidiary of the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to Successor Issuer as a result of such transaction and as having been Incurred by the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred Successor Issuer or anticipated to be Incurred and any Lien granted in connection with or in respect such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred or and be continuing;
(3) immediately after giving effect to such transaction, the Successor Issuer would be able to Incur at least an additional $1.00 of Indebtedness pursuant to the first paragraph of Section 4.12;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transactionunless it is the other party to the transactions above, in which case clause (1) has confirmed shall apply) shall have by supplemental indenture indenture, joinders, amendments, supplements or other instruments relating to the Registration Rights Agreements, if applicable, confirmed that its Note Guarantee will shall apply to such Person’s Note Obligations, and delivered such amendments, supplements or other instruments to be executed, filed and recorded in such jurisdiction as may be required by applicable law to preserve and protect the Obligations Note 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 Successor Company in respect of this Indenture and the Notes; and
(5) the Company relevant states or the Successor Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with this Indenture and that all conditions precedent in this Indenture relating to the transaction have been complied with. For purposes of this Section 4.1, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long asjurisdictions, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as case in a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything form reasonably satisfactory to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.Trustee; and
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, transfer or otherwise dispose of (or permit any of its Restricted Subsidiaries to sell, assign, transfer, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transferlease, convey or otherwise dispose of) all or substantially all of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, ) unless:
(1i) either:
either (A) the Company shall be the surviving or continuing corporation; or
Person or (B) the Person (if other than the Company) formed by such merger, consolidation or into which the Company is merged purchaser of all or the Person which acquires by sale, assignment, transfer, conveyance or other disposition the properties and assets of the Company and substantially all of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
(i) will be an entity assets is a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and“Surviving Entity”);
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)Surviving Entity, if any, expressly assumes by a supplemental indenture that is in form and interest on substance satisfactory to the Trustee all rights and obligations of the Notes and the performance and observance of every covenant of Company under the Notes and this Indenture on and the part of the Company to be performed or observedSecurity Documents;
(2iii) immediately after giving effect to such transaction and transaction, including the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtednessof the Notes, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Companythe Surviving Entity, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the shall have a Consolidated Leverage Fixed Charge Coverage Ratio of the Successor Company and its Restricted Subsidiaries would be less greater than such ratio for the Company and its Restricted Subsidiaries immediately prior 2.0 to such transaction1.0;
(3iv) immediately before and immediately after giving effect to such transaction and transaction, including the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction)the Notes, no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notesexists; and
(5v) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with all requirements under this Indenture and that all conditions precedent in this Indenture relating to the for such a transaction have been complied withsatisfied. For purposes of Notwithstanding anything in this Section 4.1, 5.01(a) to the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:contrary,
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company may merge with an Affiliate that has no material assets or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company liabilities and a newly-created Affiliate that is incorporated solely for the purpose of reincorporating the Company in another State state of the United States or in another province or under the federal laws District of Canada, so long as, in each case, the Indebtedness Columbia without complying with clause (iii) of the Company and its Restricted Subsidiaries taken first paragraph of this covenant; and
(2) any transaction characterized as a whole merger under applicable state law where each of the constituent entities survives, will not be treated as a merger for purposes of this Section 5.01, but instead will be treated as (a) an Asset Sale, if the result of such transaction is not increased therebythe transfer of assets by the Company or a Restricted Subsidiary, or (b) an Investment, if the result of such transaction is the acquisition of assets by the Company or a Restricted Subsidiary.
(cb) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and The Guarantor will not (unless its Restricted Subsidiaries Guarantee is to be released in accordance with the terms of this Indenture in connection with any transaction that complies with Section 4.14.12), in which and the Company is will not cause or permit the continuing corporationGuarantor to, consolidate with or merge with or into any Person other than the Successor Company or any other Guarantor unless: (i) the entity formed by or surviving any such consolidation or into which merger (if other than the Company is merged Guarantor) or to which such conveyancesale, lease lease, conveyance or transfer is other disposition shall have been made will succeed to, and be substituted for, and may exercise every right and power of, assumes by supplemental indenture all of the Company obligations of the Guarantor on its Guarantee under this the Indenture and the Notes Security Documents; and (ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Any merger or consolidation of the Guarantor with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of and into the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither with the Company nor being the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Personsurviving entity) need not comply with this clause (b).
Appears in 1 contract
Samples: Indenture (Alta One Inc.)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, unless:
Person unless : (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (1) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (2) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.12 of this Indenture; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. For purposes of this Section 4.1, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Companysatisfied.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Sitel Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company’s Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1a) either:
(Ai) the Company shall be the surviving or continuing corporation; or
(Bii) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
(iA) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the NotesColumbia; and
(iiB) will shall expressly assume, (1) by supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the TrusteeTrustee and the Collateral Agent, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on on, all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture on the part of the Company to be performed or observedobserved thereunder and (2) by amendment, supplement or other instrument (in form and substance reasonably satisfactory to the Trustee and the Collateral Agent), executed and delivered to the Trustee and the Collateral Agent, all obligations of the Company under the Collateral Agreements, and in connection therewith shall cause such instruments to be filed and recorded in such jurisdictions and take such other actions as may be required by applicable law to perfect or continue the perfection of the Lien created under the Collateral Agreements on the Collateral owned by or transferred to the Surviving Entity;
(2b) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iia)(ii)(B) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5c) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied withsatisfied. For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
. Each Guarantor (b) The other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Notes Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2this covenant and Section 4.16) will not, and 4.1(a)(5) above the Company will not apply cause or permit any Guarantor to, consolidate with or merge with or into any Person, other than the Company or any other Guarantor unless:
(1i) the entity formed by or surviving any transfer such consolidation or merger (if other than the Guarantor) or to which such sale, lease, conveyance or other disposition shall have been made is a corporation, limited partnership or limited liability company organized and existing under the laws of the properties United States or assets any State thereof or the District of a Restricted Subsidiary to the Company or to another Restricted SubsidiaryColumbia;
(2ii) subject such entity assumes (A) by supplemental indenture (in form and substance reasonably satisfactory to Section 10.3the Trustee), any executed and delivered to the Trustee and the Collateral Agent, all of the obligations of the Guarantor under the Notes Guarantee and the performance of every covenant of the Notes Guarantee and this Indenture and (B) by amendment, supplement or other instrument (in form and substance satisfactory to the Trustee and the Collateral Agent) executed and delivered to the Trustee and the Collateral Agent, all obligations of the Guarantor under the Collateral Agreements, as applicable, and in connection therewith shall cause such instruments to be filed and recorded in such jurisdictions and take such other actions as may be required by applicable law to perfect or continue the perfection of the Lien created under the Collateral Agreements on the Collateral owned by or transferred to the Surviving Entity;
(iii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(iv) such entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation or merger complies with this Indenture. Any merger or consolidation of (1) a Restricted Subsidiary Guarantor with and into the Company (with the Company being the Surviving Entity) or another Restricted Subsidiary;
Guarantor or (32) any merger of a Guarantor or the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created with an Affiliate incorporated organized solely for the purpose of reincorporating or (or, except with respect to the Company, reorganizing) such Guarantor or the Company in another State of jurisdiction in the United States or in another province any state thereof or under the federal laws District of Canada, so long as, in each case, the Indebtedness Columbia need only comply with:
(A) clause (iv) of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.immediately preceding paragraph of this covenant; and
(cB) Upon any consolidation, combination or (x) in the case of a merger or any transfer of all or substantially all consolidation involving the Company as described in clause (2), clause (a)(ii)(B) of the properties first paragraph of this covenant and assets (y) in the case of a merger or consolidation involving the Guarantor as described in clause (2), clause (ii) of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicableimmediately preceding paragraph.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Energy Partners LTD)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or a series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), whether as an entirety or substantially as an entirety to any Person, Person unless:
(i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which that acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observed;
(2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii) (2) (y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is -82- shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction4.12;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii) (2) (y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Certificate officers' certificate and an Opinion opinion of Counselcounsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.15.01, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of related transactions) of all or substantially all of the properties or and assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and or assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2Section 4.15) will not, and 4.1(a)(5) above the Company will not apply cause or permit any Guarantor to:
(1) , consolidate with or merge with or into any transfer of the properties or assets of a Restricted Subsidiary to Person other than the Company or any other Guarantor unless: (i) the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) or to another Restricted Subsidiary;
which such sale, lease, conveyance or other disposition shall have been made assumes by supplemental indenture all of the obligations of the Guarantor on its Guarantee; (2ii) subject immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and (iii) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a PRO FORMA -83- basis, the Company could satisfy the provisions of clause (ii) of the first paragraph of this Section 10.3, any 5.01. Any merger or consolidation of a Restricted Subsidiary Guarantor with and into the Company (with the Company being the surviving entity) or another Restricted Subsidiary;
Guarantor need not comply with clause (3a) any merger of above. Notwithstanding anything in this Section 5.01 to the contrary, (a) the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company may merge with an Affiliate that has no material assets or liabilities and a newly-created Affiliate that is incorporated or organized solely for the purpose of reincorporating or reorganizing the Company in another State state of the United States or in another province or under the federal laws District of Canada, so long as, in each case, the Indebtedness Columbia to realize tax benefits without complying with clause (ii) of the Company first paragraph of this covenant and its Restricted Subsidiaries taken (b) any transaction characterized as a whole merger under applicable state law where each of the constituent entities survives, shall not be treated as a merger for purposes of this covenant, but shall instead be treated as (x) an Asset Sale, if the result of such transaction is not increased thereby.
(c) Upon any consolidation, combination or merger or any the transfer of all or substantially all of the properties and assets of by the Company and its or a Restricted Subsidiaries in accordance with this Section 4.1Subsidiary, in which or (y) an Investment, if the result of such transaction is the acquisition of assets by the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicableRestricted Subsidiary.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity"): (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and the Regis- tration Rights Agreement on the part of the Company to be performed or observed;
(2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above of this Section 5.01 (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness pursuant to (other than Permitted Indebtedness) in compliance with Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction4.12;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above of this Section 5.01 (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary . Notwithstanding anything in this Section 5.01 to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3contrary, any merger of a Restricted Subsidiary into the Company may merge with an Affiliate that has no material assets or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company liabilities and a newly-created Affiliate that is incorporated or organized solely for the purpose of reincorporating or reorganizing the Company in another State state of the United States or in another province or under the federal laws Xxxxxxxx xx Xxxxxxxx without complying with clause (a)(ii) of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable5.01.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will Payor shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person or effect a share exchange with (whether or not the Company Payor is the surviving or continuing Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the its properties and or assets of the Company to, any person as an entirety or the Company and its Restricted Subsidiaries taken substantially as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, an entirety unless:
(1i) either:
either (A) the Company Payor shall be the surviving corporation, or continuing corporation; or
(B) the Person person formed by or surviving any such consolidation, merger or share exchange (if other than the CompanyPayor) formed by such consolidation or into which the Company is merged or the Person person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety Payor (the “Successor Company”):
(i1) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y2) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (agreement in form reasonably satisfactory to the Trustee)Required Holders, executed and delivered to the Trusteeeach Holder, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, of and interest on all of the Notes this Note and the performance and observance of every covenant of the Notes and this Indenture Note on the part of the Company Payor to be performed or observed;, including, without limitation, the rights of holders to cause the repurchase of all or any portion of this Note upon a Designated Event in accordance with Section 7 hereof, the conversion rights in accordance with Section 2 hereof, the adjustments to the Conversion Rate set forth in Section 3 hereof and the rights set forth in Section 4 of the Investment Agreement, in addition to any provisions required by Section 3(a) hereof; and
(2ii) immediately after giving effect to such transaction no default under this Note and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) the Company or the Successor Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with this Indenture and that all conditions precedent in this Indenture relating to the transaction have been complied with. For purposes of this Section 4.18(a), the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries subsidiaries of the CompanyPayor, the Capital Stock capital stock of which individually or in the aggregate constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Payor, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Payor. Upon any such consolidation, combination merger, share exchange, sale, assignment, conveyance, lease, transfer or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries other disposition in accordance with this Section 4.1, in which the Company is not the continuing corporation8(a), the Successor Company successor person formed by such consolidation or share exchange or into which the Company Payor is merged or to which such sale, assignment, conveyance, lease lease, transfer or transfer other disposition is made will succeed to, and be substituted for, and may exercise every right and power of, the Company Payor under this Indenture and the Notes Note with the same effect as if such Successor Company successor had been named as suchPayor herein, and thereafter (except in the case of a lease) the predecessor corporation will be relieved of all further obligations and covenants under this Note. For the avoidance of doubt, compliance with this This Section 4.1 will 8(a) does not affect the Obligations obligations of the Company Payor (including a Successor Company, if applicablewithout limitation any successor to Payor) under Section 3.21, if applicable7.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Investment Agreement (Republic Airways Holdings Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the Company’s properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, Person unless:
(1a) either:
(A1) the Company shall be the surviving or continuing corporation; , or
(B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
(iA) will shall be an entity organized or incorporated, as applicable, and validly existing under the laws of (xi) the Grand Duchy of Luxembourg, (ii) the United States or of America, any State thereof or the District of Columbia Columbia, (iii) the Federative Republic of Brazil, (iv) the British Virgin Islands, (v) Panama or (yvi) Canada or any province or territory thereof; provided that if the Successor Company country which is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer member country of the Notes; Organization for Economic Co-Operation and Development, and
(iiB) will shall expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part obligations of the Company to be performed or observedunder this Indenture and the Securities;
(2b) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iia)(2)(B) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is will be able to Incur at least $1.00 U.S.$1.00 of additional Indebtedness pursuant to Section 3.8(a4.09(a) or hereof; provided that this clause (Bb) the Consolidated Leverage Ratio shall not be applicable with respect to any transaction involving a Change of Control where no Change of Control Offer is required to be made because such transaction does not trigger clause (iv) of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transactiondefinition of a Rating Event;
(3c) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iia)(2)(B) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5d) the Company or the Successor Company Surviving Entity has delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction have been complied with. For purposes of this Section 4.1, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Companysatisfied.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Arazi S.a r.l.)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company Com- pany and its Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company or a Restricted Subsidiary of the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company or a Restricted Subsidiary of the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties and Company's assets of determined on a consolidated basis for the Company and of the Company’s its Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes and Securities, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (1) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (2) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.04; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion opinion of Counselcounsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction execution of such supplemental indenture have been complied withsatisfied. For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the CompanyCompany (other than to a Wholly Owned Subsidiary that is a Guarantor), the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) . Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1the foregoing, in which the Company is not the continuing corporation, the Successor Company successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes Securities with the same effect as if such Successor Company surviving entity had been named as suchsuch and the Company shall be relieved of all of its Obligations and duties under this Indenture and the Securities. For Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the avoidance terms of doubtthe Guarantee and this Indenture) will not, compliance with this Section 4.1 and the Company will not affect cause or permit any Guarantor to, consolidate with or merge with or into any Person other than the Company or any other Guarantor unless: (i) the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) or to which such sale, lease, conveyance or other disposition shall have been made is a corporation organized and existing under the laws of the United States or any State thereof or the District of Columbia; (ii) such entity assumes by supplemental indenture all of the Obligations of the Guarantor on the Guarantee; (iii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and (iv) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the Company could satisfy the provisions of clause (ii) of the first paragraph of this Section 5.01. Any merger or consolidation of a Guarantor with and into the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither with the Company nor being the surviving entity) or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Personneed not comply with this Section 5.01.
Appears in 1 contract
Samples: Indenture (Autotote Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), whether as an entirety or substantially as an entirety to any Person, Person unless:
: (1a) either:
either (Ai) the Company or such Restricted Subsidiary, as the case may be, shall be the surviving or continuing corporation; or
corporation or (Bii) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s its Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State state thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes Notes, the Indenture and this Indenture the Registration Rights Agreement on the part of the Company to be performed or observed;
; (2b) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iia)(ii)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (i) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (ii) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.12 hereof; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3c) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iia)(ii)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5d) the Company or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ Certificate officers' certificate and an Opinion opinion of Counselcounsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with this Indenture the applicable provisions hereof and that all conditions precedent in this Indenture relating to the such transaction have been complied withsatisfied; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Company. For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
. Notwithstanding the foregoing, nothing in this Section shall prohibit the merger of CGGS with and into Canadian Abraxas. Each Subsidiary Guarantor (b) The other than any Subsidiary Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2the Indenture described under Article Five) will not, and 4.1(a)(5) above the Company will not apply cause or permit any Subsidiary Guarantor to:
(1) , consolidate with or merge with or into any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into Person other than the Company or another Restricted Subsidiary;
(3) any merger of the Company into Subsidiary Guarantor that is a Wholly Owned Restricted Subsidiary of unless: (a) the Company created for entity formed by or surviving any such consolidation or merger (if other than the purpose of holding Subsidiary Guarantor) or to which such sale, lease, conveyance or other disposition shall have been made is a corporation organized and existing under the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State laws of the United States or in another province any state thereof or under the federal laws District of Canada, so long as, in each case, the Indebtedness Columbia; (b) such entity assumes by execution of a supplemental indenture all of the Company and obligations of the Subsidiary Guarantor under its Restricted Subsidiaries taken as a whole is not increased thereby.
Guarantee; (c) Upon any consolidationimmediately after giving effect to such transaction, combination no Default or merger or any transfer Event of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, Default shall have occurred and be substituted for, continuing; and may exercise every right (d) immediately after giving effect to such transaction and power ofthe use of any net proceeds therefrom on a pro forma basis, the Company under could satisfy the provisions of clause (b) of the first paragraph of this Indenture covenant. Any merger or consolidation of a Subsidiary Guarantor with and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of into the Company (including with the Company being the surviving entity) or another Subsidiary Guarantor that is a Successor Company, if applicable) under Section 3.21, if applicable.
Wholly Owned Restricted Subsidiary need only comply with clause (d) Notwithstanding anything to of the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all first paragraph of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Personthis Section 5.01.
Appears in 1 contract
Samples: Indenture (Abraxas Petroleum Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted the Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
either (A) the Company shall be the surviving or continuing corporation; or
corporation or (B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
) (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or Columbia, and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this the Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted or to be released in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(53) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with this the applicable provisions of the Indenture and that all conditions precedent in this the Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the CompanySubsidiaries, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination consolidation or merger or any conveyance, lease or transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, the foregoing in which the Company is not the continuing corporation, the Successor Company surviving entity formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Supplemental Indenture and the Notes with the same effect as if such Successor Company surviving entity had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything No Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Supplemental Indenture) will, and the Company will not cause or permit any Guarantor to, consolidate with or merge with or into any Person other than the Company or any other Guarantor unless:
(1) the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) is a corporation organized and existing under the laws of the United States or any State thereof or the District of Columbia;
(2) such entity expressly assumes by supplemental indenture (in form and substance satisfactory to the contrary hereinTrustee), neither executed and delivered to the Trustee, the performance of every covenant of the Notes and the Indenture on the part of such Guarantor to be performed or observed;
(3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(4) the Company nor shall have delivered to the Company Trustee an Officer’s Certificate and its Restricted Subsidiaries taken as Opinion of Counsel, each in form and substance reasonably satisfactory to the Trustee and stating that such consolidation or merger and, if a whole maysupplemental indenture is required in connection with such transaction, directly or indirectly, lease such supplemental indenture complies with the applicable provisions of the Indenture and that all or substantially all of its or their respective properties or assets considered as one enterprise, conditions precedent in one or more related transactions, the Indenture relating to any other Personsuch transaction have been satisfied.
Appears in 1 contract
Samples: Second Supplemental Indenture (Graphic Packaging Holding Co)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company’s properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, Person unless:
(i) either:
(1) either:
(A) the Company shall be is the surviving or continuing corporation; or
(B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
(iA) will be an entity is a corporation organized and validly existing under the laws of (x) the Netherlands or the United States or of America, any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the NotesColumbia; and
(iiB) will expressly assumeassumes, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant the covenants of the Notes and this the Indenture on the part of the Company to be performed or observed;
(2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iiSection 4.1(a)(i)(2)(B) above (including giving effect on a pro forma basis to any Indebtedness, Indebtedness (including any Acquired Indebtedness, ) Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is will be able to Incur at least $1.00 U.S.$1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Net Debt to EBITDA Ratio of the Successor Company and its Restricted Subsidiaries would will be less no worse than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iiSection 4.1(a)(i)(2)(B) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, Indebtedness (including any Acquired Indebtedness, ) Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have has occurred or be is continuing;
(4iv) each Note Subsidiary Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Subsidiary Guarantee will apply to for the Obligations of the Successor Company Surviving Entity in respect of this the Indenture and the Notes; and
(5v) if the Company is organized under the laws of the Netherlands and merges with a corporation that is (or the Surviving Entity is) organized under the laws of the United States, any State thereof or the District of Columbia, or if the Company is organized under the laws of the United States, any State thereof or the District of Columbia and merges with a corporation that is (or the Surviving Entity is) organized under the laws of the Netherlands, the Company or the Surviving Entity will have delivered to the Trustee:
(1) an Opinion of Counsel from U.S. counsel to the effect that Holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the transaction and will be subject to U.S. federal income tax in the same manner and on the same amounts (assuming solely for this purpose that no Additional Amounts are required to be paid on the Notes) and at the same times as would have been the case if the transaction had not occurred; and
(2) an Opinion of Counsel from Netherlands counsel to the effect that Holders of the Notes will not recognize income, gain or loss for Netherlands income tax purposes as a result of the transaction and will be subject to Netherlands income taxes in the same manner and on the same amounts (assuming solely for this purpose that no Additional Amounts are required to be paid on the Notes) and at the same times as would have been the case if the transaction had not occurred.
(vi) the Company or the Successor Company Surviving Entity has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with this the applicable provisions of the Indenture and that all conditions precedent in this the Indenture relating to the transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The provisions of Sections 4.1(a)(2Section 4.1(a)(ii) and 4.1(a)(5Section 4.1(a)(iii) above will shall not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger consolidation of the Company into a Wholly Owned Subsidiary an Affiliate of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, jurisdiction so long as, in each case, as the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(cd) Section 4.1(a), Section 4.1(b) and Section 4.1(c) shall not apply to (i) any transfer of assets by the Company to any Subsidiary Guarantor, (ii) any transfer of assets among Subsidiary Guarantors or (iii) any transfer of assets by a Non-Guarantor Restricted Subsidiary to (x) another Non-Guarantor Restricted Subsidiary or (y) the Company or any Subsidiary Guarantor.
(e) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1covenant, in which the Company is not the continuing corporationPerson, the Successor Company Surviving Entity formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company Surviving Entity had been named as suchsuch and the Company shall be relieved of its obligations under this Indenture and the Notes. For the avoidance of doubt, compliance with this Section 4.1 4.1(a) will not affect the Obligations obligations of the Company (including a Successor CompanySurviving Entity, if applicable) under Section 3.21, 3.7 if applicable.
(df) Notwithstanding anything to the contrary hereinNo Subsidiary Guarantor shall consolidate with or merge with or into any Person, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole mayor sell, directly convey, transfer or indirectlydispose of, lease all or substantially all of its assets as an entirety or their respective properties or assets considered substantially as one enterprisean entirety, in one transaction or more a series of related transactions, to any Person, or permit any Person to merge with or into the Subsidiary Guarantor unless:
(i) the other PersonPerson is the Company or any Restricted Subsidiary that is a Subsidiary Guarantor or becomes a Subsidiary Guarantor concurrently with the transaction; or
(ii) (1) either (x) the Subsidiary Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes by supplemental indenture all of the obligations of the Subsidiary Guarantor under its Subsidiary Guarantee; and (2) immediately after giving effect to the transaction, no Default has occurred and is continuing; or
(iii) the transaction constitutes a sale or other disposition (including by way of consolidation or merger) of the Subsidiary Guarantor or the sale or disposition of all or substantially all the assets of the Subsidiary Guarantor (in each case other than to the Company or a Restricted Subsidiary) otherwise permitted by this Indenture.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a1) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1a) either:
(Ai) the Company shall be the surviving or continuing corporation; or
(Bii) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”"Surviving Entity"):
(iA) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or States, any State state thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the NotesColumbia; and
(iiB) will shall expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
(2b) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iiSection 5.1(1)(a)(ii)(B) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (a) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (b) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction4.9;
(3c) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iiSection 5.1(1)(a)(ii)(B) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5d) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(2) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of Notwithstanding the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary hereinforegoing, neither the Company nor any Subsidiary will consolidate or merge with NL Industries.
(4) Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Section 4.10 of this Indenture) will not, and the Company will not cause or permit any Guarantor to, consolidate with or merge with or into any Person other than the Company or any other Guarantor unless:
(a) the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) or to which such sale, lease, conveyance or other disposition shall have been made is a corporation organized and its Restricted Subsidiaries taken as existing under the laws of the European Union, any state that is a whole maymember of the European Union on the Issue Date, directly the United States, any State thereof, the District of Columbia or indirectly, lease all or substantially the Kingdom of Norway;
(b) such entity assumes by supplemental indenture all of its the obligations of the Guarantor on the Guarantee;
(c) immediately after giving effect to such transaction, no Default or their respective properties Event of Default shall have occurred and be continuing; and
(d) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the Company (i) shall have a Consolidated Net Worth equal to or assets considered as one enterprise, in one greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (ii) shall be able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.9 of this Indenture.
(5) Any merger or more related transactions, to any other Personconsolidation of a Guarantor with and into the Company (with the Company being the surviving entity) or another Guarantor need only comply with Section 5.1(1)(d).
Appears in 1 contract
Samples: Indenture (Kronos International Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company’s properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (assets, determined on a consolidated basis for the Company and its Restricted Subsidiaries)Subsidiaries taken as a whole, to any Person, Person unless:
(1) either:
(Ai) the Company shall be the surviving or continuing corporation; , or
(Bii) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
(iA) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or States, any State or territory thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporationColumbia, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(iiB) will shall expressly assume, by supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(ii)(B) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction3.9(a);
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(ii)(B) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors the Company or the Surviving Entity, as a result of applicable, shall cause such transaction) has confirmed amendments, supplements or other instruments to be filed, executed and/or recorded in such jurisdictions as may be required by supplemental indenture that its Note Guarantee will apply applicable law to preserve and protect the Obligations Lien of the Successor Company Security Documents on the Collateral owned by or transferred to such Person, together with such financing statements as may be required to perfect any security interests in respect such Collateral which may be perfected by the filing of this Indenture and a financing statement under the Notes; andUCC of the relevant states;
(5) the Collateral owned by or transferred to the Company or the Successor Surviving Entity, as applicable, shall
(i) continue to constitute Collateral under this Indenture and the Security Documents,
(ii) be subject to the Lien in favor of the Trustee for the benefit of the Holders, and
(iii) not be subject to any Lien other than Liens permitted by this Indenture and the Security Documents; and
(6) the Company has or the Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction have been complied with. For purposes of this Section 4.1, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) . The provisions of Sections 4.1(a)(2) and 4.1(a)(5clause (2) above will shall not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or and/or to another Restricted Subsidiarya Note Guarantor;
(2) subject to Section 10.3, any merger or consolidation of a Restricted Subsidiary into or with the Company or another Restricted Subsidiarya Note Guarantor;
(3) any merger or consolidation of the Company into or with a Wholly Owned Restricted Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or;
(4) a merger or consolidation between the Company and a newly-newly created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States States;
(5) the transfer of all or in another province substantially all of the properties or under assets of the federal laws Company to a Wholly Owned Restricted Subsidiary that is a Note Guarantor;
(6) any transfer of Canada, the properties or assets of a Restricted Subsidiary that is not a Note Guarantor to a Restricted Subsidiary; or
(7) any merger or consolidation of a Restricted Subsidiary that is not a Note Guarantor into or with a Restricted Subsidiary; so long as, in each case, the Indebtedness of the Company and its the Restricted Subsidiaries taken as (including a whole Surviving Entity) is not increased thereby.
(cb) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1covenant, in which the Company is not the continuing corporation, the Successor Company Surviving Entity formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company Surviving Entity had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will covenant shall not affect the Obligations obligations of the Company (including a Successor CompanySurviving Entity, if applicable) under Section 3.213.8, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company’s properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, Person unless:
(i) either:
(1) either:
(A) the Company shall be is the surviving or continuing corporation; or
(B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition of the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
(ia) will be an entity is a corporation organized and validly existing under the laws of (x) Mexico or the United States or of America, any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(iib) will expressly assumeassumes, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, of and interest on all of the Notes and the performance and observance of every covenant the covenants of the Notes and Notes, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
(2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iiSection 4.1(a)(i)(2)(b) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall either:
(1) be able to Incur at least $1.00 U.S.$1.00 of additional Indebtedness pursuant to Section 3.8(a); or
(2) or have (Bx) a Consolidated Fixed Charge Coverage Ratio of not less than the Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries immediately prior to such transaction and (y) a Consolidated Leverage Ratio of not more than the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; provided that the provisions of Section 4.1(a)(ii) shall not apply to:
(a) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(3b) any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary; or
(c) any merger of the Company into an Affiliate of the Company incorporated solely for the purpose of reincorporating the Company in another jurisdiction, so long as, in each case the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby;
(iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iiSection 4.1(a)(i)(2)(b) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have has occurred or be is continuing;
(4iv) each Note Guarantor any Restricted Subsidiary that after the Issue Date provides a Subsidiary Guarantee (including Persons that become Note Guarantors are required to provide Subsidiary Guarantees as a result of such the transaction) has confirmed by supplemental indenture that its Note Subsidiary Guarantee will shall apply to for the Obligations of the Successor Company Surviving Entity in respect of this Indenture Indenture, the Notes and the Registration Rights Agreement;
(v) if the Company is organized under Mexican law and merges with a corporation, or the Surviving Entity is, organized under the laws of the United States, any State thereof or the District of Columbia or the Company is organized under the laws of the United States, any State thereof or the District of Columbia and merges with a corporation, or the Surviving Entity is, organized under the laws of Mexico, the Company or the Surviving Entity shall have delivered to the Trustee an Opinion of Counsel from Mexican counsel and U.S. counsel to the effect that, as applicable:
(1) the Holders of the Notes shall not recognize income, gain or loss for U.S. or Mexican income tax purposes as a result of the transaction and shall be taxed in the Holder’s home jurisdiction in the same manner and on the same amounts (assuming solely for this purpose that no Additional Amounts are required to be paid on the Notes) and at the same times as would have been the case if the transaction had not occurred;
(2) any payment of interest or principal under or relating to the Notes or any Subsidiary Guarantee shall be paid in compliance with any requirements under Section 3.19; and
(53) no other taxes on income, including capital gains, shall be payable by Holders of the Notes under the laws of Mexico or the United States relating to the acquisition, ownership or disposition of the Notes, including the receipt of interest or principal thereon; provided that the Holder is not a tax resident of Mexico or the United States, as applicable, and does not use or hold, and is not deemed to use or hold the Notes in carrying on a business in Mexico or the United States; and
(vi) the Company or the Successor Company Surviving Entity has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture herein relating to the transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporationPerson, the Successor Company Surviving Entity formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company Surviving Entity had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will shall not affect the Obligations obligations of the Company (including a Successor CompanySurviving Entity, if applicable) under Section 3.213.7, if applicable. Any merger, consolidation, transfer or sale of assets conducted in accordance with this Section 4.1 shall be deemed to have been authorized by the Holders of the Notes for purposes of Article 225 of the Mexican Law on Commercial Companies (Ley General de Sociedades Mercantiles).
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Alestra)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or a series of related transactions, consolidate with or merge with or into any Person (whether or not other than the merger of a Wholly Owned Subsidiary of the Company is into the surviving or continuing PersonCompany), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the Company's properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), ) to any Person, Person whether as an entirety or substantially as an entirety unless:
(1) either:
either (A) the Company shall be the surviving or continuing corporation; or
corporation or (B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted its Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation or limited liability company organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture an agreement (in form and substance reasonably satisfactory to the TrusteeRequired Holders), executed and delivered to the TrusteeHolders, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (i) shall be able to Incur incur at least $1.00 of additional Indebtedness pursuant (other than Permitted Indebtedness) in compliance with Section 4.12 and (ii) shall have a Consolidated Net Worth at least equal to Section 3.8(a) or (B) the Consolidated Leverage Ratio Net Worth of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(54) the Company or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee Holders an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or and assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2Section 4.16) shall not, and 4.1(a)(5) above will the Company shall not apply cause or permit any Guarantor to:
(1) , consolidate with or merge with or into any transfer of the properties or assets of a Restricted Subsidiary to Person other than the Company or any other Guarantor unless: (i) the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) or to another Restricted Subsidiary;
which such sale, lease, conveyance or other disposition shall have been made is a corporation or limited liability company organized and existing under the laws of the United States or any State thereof or the District of Columbia; (ii) such entity expressly assumes all of the obligations of the Guarantor on the Guarantee; (iii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and (iv) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the Company could satisfy the provisions of clause (2) subject to of Section 10.3, any 5.01(a). Any merger or consolidation of a Restricted Subsidiary Guarantor with and into the Company (with the Company being the surviving entity) or another Restricted Subsidiary;
(3) any merger of the Company into Guarantor that is a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
need only comply with clause (4) of Section 5.01(a). When a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State successor assumes all of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness obligations of the Company under the Notes and its Restricted Subsidiaries taken as this Indenture in a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with transaction permitted by this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of5.01, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicablebe deemed to be released from those obligations.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, unless:
(1) either:
(A) the Company shall be the surviving or continuing corporation; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
(i) will be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest (including any Additional Interest, if any) on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and the relevant Registration Rights Agreement on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction);
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) the Company or the Successor Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction have been complied withsatisfied. For purposes of this Section 4.1, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections Section 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiarya Note Guarantor;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease conveyance or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (MDC Partners Inc)
Merger, Consolidation and Sale of Assets. (a1) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, ) unless:
: (1i) either:
either (Aa) the Company shall be the surviving or continuing corporation; or
corporation or (Bb) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted its Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture Supplemental Indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Supplemental Indenture on the part of the Company to be performed or observed;
, as the case may be; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(b)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (a) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (b) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than additional Permitted Indebtedness) pursuant to Section 3.8(a) or 4.12; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a Supplemental Indenture is required in connection with such transaction, the supplemental indenture, such Supplemental Indenture comply with the applicable provisions of this Supplemental Indenture and that all conditions precedent in this Supplemental Indenture relating to the such transaction have been complied with. satisfied.
(2) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the -76- Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity"); ---------------- (ix) will shall be an entity a corporation, partnership, trust or a limited liability company organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes and Securities, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
; provided that if at any time the Company or the Surviving Entity is -------- a limited liability company, partnership or trust, there shall be a co-issuer of the Securities that is a Restricted Subsidiary of the Company and that is a corporation organized and existing under the laws of the United States or any State thereof or the District of Columbia; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is be shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.04; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the ap- plicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied withsatisfied. Notwithstanding the foregoing, the merger of the Company with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction shall be permitted.
(b) For purposes of this Section 4.1the foregoing paragraph (a), the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2Section 4.16) shall not, and 4.1(a)(5) above will the Company shall not apply cause or permit any Guarantor to:
(1) , consolidate with or merge with or into any transfer of the properties or assets of a Restricted Subsidiary to Person other than the Company or to another Restricted Subsidiary;
any other Guarantor unless: (2i) subject to Section 10.3the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) is a corporation, any merger of a Restricted Subsidiary into partnership, trust or limited liability company organized and existing under the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State laws of the United States or in another province any State thereof or under the federal laws District of CanadaColumbia; (ii) such entity assumes by supplemental indenture all of the obligations of the Guarantor on the Guarantee; (iii) immediately after giving effect to such transaction, so long as, in each caseno Default or Event of Default shall have occurred and be continuing; and (iv) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the Indebtedness Company could --- ----- satisfy the provisions of clause (a) (ii) of this Section 5.01. Any merger or consolidation of a Guarantor with and into the Company (with the Company being the surviving entity) or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company and its Restricted Subsidiaries taken as a whole is not increased therebyneed only comply with clause (a) (iv) of Section 5.01.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity"); (ix) will shall be an entity ---------------- a corporation, partnership, trust or a limited liability company organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee)indenture, executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes and Securities, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
; provided that if at any time the Company or the Surviving Entity is a -------- limited liability company, partnership or trust, there shall be a co-issuer of the Securities that is a Restricted Subsidiary of the Company and that is a corporation organized and existing under the laws of the United States or any State thereof or the District of Columbia; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii) (2) (y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is be shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.04; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii) (2) (y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied withsatisfied. Notwithstanding the foregoing, the merger of the Company with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction shall be permitted.
(b) For purposes of this Section 4.1the foregoing paragraph (a), the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2Section 4.16) shall not, and 4.1(a)(5) above will the Company shall not apply cause or permit any Guarantor to:
(1) , consolidate with or merge with or into any transfer of the properties or assets of a Restricted Subsidiary to Person other than the Company or to another Restricted Subsidiary;
any other Guarantor unless: (2i) subject to Section 10.3the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) is a corporation, any merger of a Restricted Subsidiary into partnership, trust or limited liability company organized and existing under the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State laws of the United States or in another province any State thereof or under the federal laws District of CanadaColumbia; (ii) such entity assumes by supplemental indenture all of the obligations of the Guarantor on the Guarantee; (iii) immediately after giving effect to such transaction, so long as, in each caseno Default or Event of Default shall have occurred and be continuing; and (iv) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the Indebtedness --------- Company could satisfy the provisions of clause (a) (ii) of this Section 5.01. Any merger or consolidation of a Guarantor with and into the Company (with the Company being the surviving entity) or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company and its Restricted Subsidiaries taken as a whole is not increased therebyneed only comply with clause (a) (iv) of Section 5.01.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Encompass Services Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the Company’s properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for (other than sales, assignments, transfers, leases, conveyances or other dispositions of Securitization Assets, Repurchase Agreement Assets, Investments or other securities or assets, in each case in the Company and its Restricted Subsidiaries), ordinary course of business) to any Person, unless:
(1) either:
(A) the Company shall be the surviving or continuing corporationPerson; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and all or substantially all of the Company’s Restricted Subsidiaries substantially as an entirety properties and assets (the “Successor CompanySurviving Entity”):
(i) will shall be an entity organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the NotesColumbia; and
(ii) will shall expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee)indenture, executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of in the Notes and this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and and, if applicable, the assumption contemplated by clause (1)(B)(iiSection 5.01(a)(1)(B)(ii) above (including giving effect on a pro forma basis effect to any IndebtednessIndebtedness and Acquired Indebtedness incurred and any repayment, including any Acquired Indebtednessrepurchase, Incurred defeasance, redemption or anticipated to be Incurred in connection with or in respect other discharge of such transaction), (A) Indebtedness by the Company or such Successor Companythe Surviving Entity, as the case may be, is or any of their respective Subsidiaries in connection with such transaction), the Company or such Surviving Entity, as the case may be: (a) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction, in each case determined as of the end of the most recent fiscal quarter ending on or prior to the date of such transaction for which financial statements of the Company or the Surviving Entity, as the case may be, are available; or (b) shall be able to Incur incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) 4.07(b); or (Bc) shall have a Consolidated Fixed Charge Coverage Ratio that is equal to or greater than the Consolidated Leverage Fixed Charge Coverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transactiontransaction (the computations required by clauses (b) and (c) above shall be computed on a pro forma basis giving effect to such transaction as if it had occurred at the beginning of the most recent Four Quarter Period ended on or prior to the date of such transaction for which financial statements of the Company or the Surviving Entity, as the case may be, are available and the other pro forma adjustments set forth in the definition of “Consolidated Fixed Charge Coverage Ratio”). If the transaction involves a Surviving Entity and the Company and the Surviving Entity have different fiscal quarters, then the relevant Four Quarter Period and, for purposes of clause (a) of this paragraph (2), the relevant fiscal quarter, may, at the election of the Company, be based on either the Company’s or the Surviving Entity’s fiscal quarters;
(3) immediately before and immediately after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation of the assumption contemplated Company or the Surviving Entity, as the case may be, or any of its Subsidiaries as a result of such transaction as having been incurred by clause (1)(B)(ii) above (includingthe Company or the Surviving Entity, without limitationas the case may be, giving effect on a pro forma basis to or such Subsidiary at the time of such transaction, and any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated Indebtedness to be Incurred and repaid, repurchased, defeased, redeemed or otherwise discharged by the Company or the Surviving Entity or any Lien granted of their respective Subsidiaries in connection with such transaction as having been repaid, repurchased, defeased, redeemed or in respect otherwise discharged at the time of such transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) if the Surviving Entity is not the Company, each Note Guarantor (including Persons that become Note Guarantors as a result of such transactionunless it is the Surviving Entity, in which case Section 5.01(a)(1)(B) has confirmed above shall apply) shall have by supplemental indenture confirmed that its Note Guarantee will of the Notes shall apply to the Obligations of the Successor Company in respect of such Surviving Entity’s obligations under this Indenture and the Notes; and
(5) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of CounselCounsel (which Opinion of Counsel may be subject to customary assumptions, limitations and exceptions), each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with this Indenture and that all conditions precedent in this Indenture relating to the transaction have been complied with. For purposes applicable provisions of this Section 4.1, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the CompanyIndenture.
(b) The Notwithstanding the provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) Section 5.01(a), any transfer Subsidiary of the Company may merge or consolidate with or into or transfer all or any part of its properties or and assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2the Surviving Entity or any other Subsidiary of the Company or the Surviving Entity and Section 5.01(a) subject to Section 10.3and, any merger except in the case of a Restricted Subsidiary merger or consolidation with or into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of CanadaSurviving Entity, so long asSection 5.01(f), in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is shall not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, apply to any other Personsuch transaction.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (1) shall have a Consolidated Tangible Net Worth equal to or greater than the Consolidated Tangible Net Worth of the Company immediately prior to such transaction and (2) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.04; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Sheffield Steel Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
(Aa) the Company shall be the surviving or continuing corporation; or
(Bb) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”"Surviving Entity"):
(i) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the NotesColumbia; and
(ii) will shall expressly assume, by supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, interest and interest Additional Interest, if any, on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observedobserved thereunder;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(b)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (a) shall have a Consolidated Net Worth at least equal to the Consolidated Net Worth of the Company immediately prior to such transaction and (b) shall be able to Incur incur at least $1.00 of additional Indebtedness pursuant to (other than Permitted Indebtedness) in compliance with Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction4.08;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(b)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(54) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied withsatisfied. For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
. Any merger or consolidation of (bi) The provisions of Sections 4.1(a)(2) a Guarantor with and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company (with the Company being the surviving entity) or another Restricted Subsidiary;
Guarantor or (3ii) any merger of a Guarantor or the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created with an Affiliate incorporated organized solely for the purpose of reincorporating such Guarantor or the Company in another State of jurisdiction in the United States or in another province any state thereof or under the federal laws District of Canada, so long as, in each case, the Indebtedness Columbia need only comply with (A) clause (4) of the Company first paragraph of this Section 5.01; and its Restricted Subsidiaries taken as (B) in the case of a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer consolidation involving the Company as described in clause (ii) of all or substantially all this sentence, clause (1)(b)(ii) of the properties and assets first paragraph of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable5.01.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Hawk Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
either (A) the Company shall be the surviving or continuing corporation; or
corporation or (B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or Columbia, (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes and Securities, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed and (z) shall expressly assume, by documentation specified by, and executed and delivered to, the Trustee and the Collateral Agent, the due and punctual performance of every covenant and obligation under the Security Documents on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction on a pro forma basis and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction4.03;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted or to be released in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(54) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee and the Collateral Agent an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the CompanySubsidiaries, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The No Guarantor (other than any Guarantor whose Subsidiary Guarantee is to be released in accordance with the terms of the Subsidiary Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2Section 4.12) will, and 4.1(a)(5) above the Company will not apply cause or permit any Guarantor to, consolidate with or merge with or into any Person other than the Company or any other Guarantor unless:
(1) the entity formed by or surviving any transfer such consolidation or merger (if other than the Guarantor) is a corporation organized and existing under the laws of the properties United States or assets any State thereof or the District of a Restricted Subsidiary to the Company or to another Restricted SubsidiaryColumbia;
(2) subject such entity expressly assumes by supplemental indenture (in form and substance satisfactory to Section 10.3the Trustee), any merger executed and delivered to the Trustee, the performance of a Restricted Subsidiary into every covenant of the Company Securities, this Indenture and the Registration Rights Agreement on the part of such Guarantor to be performed or another Restricted Subsidiaryobserved;
(3) any merger such entity shall expressly assume, by documentation specified by, and executed and delivered to the Trustee, the due and punctual performance of every covenant and obligation under the Company into a Wholly Owned Subsidiary Security Documents on the part of the Company created for the purpose of holding the Capital Stock of the Company; orsuch Guarantor to be performed or observed;
(4) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(5) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a merger between pro forma basis, the Company and a newly-created Affiliate incorporated solely for could satisfy the purpose provisions of reincorporating clause (a)(2) of this Section 5.01; and
(6) the Company in another State shall have delivered to the Trustee and the Collateral Agent an Officers' Certificate and Opinion of the United States or in another province or under the federal laws of CanadaCounsel, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by stating that such consolidation or into which merger and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under applicable provisions of this Indenture and the Notes with the same effect as if that all conditions precedent in this Indenture relating to such Successor Company had transaction have been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicablesatisfied.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Tenneco Automotive Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State state thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture inden- ture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (1) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (2) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.12 hereof; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2Section 4.16 of this Indenture) will not, and 4.1(a)(5) above the Company will not apply cause or permit any Guarantor to:
(1) , consolidate with or merge with or into any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into Person other than the Company or another Restricted Subsidiary;
Guarantor unless: (3a) the entity formed by or surviving any such consolidation or merger of (if other than the Company into Guarantor) or the entity to which such sale, lease, conveyance or other disposition shall have been made is a Wholly Owned Subsidiary of corporation organized and existing under the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State laws of the United States or in another province any state thereof or under the federal laws District of Canada, so long as, in each case, the Indebtedness Columbia; (b) such entity assumes by supplemental indenture all of the Company and obligations of the Guarantor under its Restricted Subsidiaries taken as a whole is not increased thereby.
Guarantee; (c) Upon any consolidationimmediately after giving effect to such transaction, combination no Default or merger or any transfer Event of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, Default shall have occurred and be substituted for, continuing; and may exercise every right (d) immediately after giving effect to such transaction and power ofthe use of any net proceeds therefrom on a pro forma basis, the Company under this Indenture and could satisfy the Notes with provisions of --- ----- clause (ii) of the same effect as if such Successor Company had been named as such. For the avoidance first paragraph of doubt, compliance with this Section 4.1 will not affect the Obligations 5.01. Any merger or consolidation of a Guarantor with and into the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither with the Company nor being the Company and its surviving entity) or another Guarantor that is a Wholly Owned Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all Subsidiary need only comply with clause (iv) of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Personparagraph (a) of this Section 5.01.
Appears in 1 contract
Samples: Indenture (T Sf Communications Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will notNeither Issuer will, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and such Issuer's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company such Issuer and its Restricted Subsidiaries), whether as an entirety or substantially as an entirety to any PersonPerson unless: (a) either (i) such Issuer or such Restricted Subsidiary, unless:
(1) either:
(A) as the Company case may be, shall be the surviving or continuing corporation; or
corporation or (Bii) the Person (if other than the Companysuch Issuer) formed by such consolidation or into which the Company such Issuer is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company such Issuer and of the Company’s its Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State state thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that or, if the Successor Company such Issuer is not a corporationCanadian Abraxas, then such Surviving Entity may be a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not thereof) and will not have any material assets or operations (y) shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and the Security Documents on the part of the Company such Issuer to be performed or observed;
; (2b) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iia)(ii)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such transaction), no Default such Issuer or Event of Default such Surviving Entity, as the case may be, (i) shall have occurred a Consolidated Net Worth equal to or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result greater than the Consolidated Net Worth of such transactionIssuer immediately prior to such transaction and (ii) has confirmed by supplemental indenture that its Note Guarantee will apply shall be able to the Obligations incur at least $1.00 of the Successor Company in respect of this Indenture and the Notes; and
additional Indebtedness (5other than Permitted Indebtedness) the Company or the Successor Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with this Indenture and that all conditions precedent in this Indenture relating to the transaction have been complied with. For purposes of this Section 4.1, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject pursuant to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company4.12 hereof; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties immediately before and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.immediately
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Neither the Company will notnor the Issuer will, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
either (A) the Company, the Issuer or a Restricted Subsidiary of the Company shall be the surviving or continuing corporation; or
Person or (B) the Person (Person, if other than the Company) , the Issuer or a Restricted Subsidiary of the Company, formed by such consolidation or into which the Company or the Issuer is merged or the Person which that acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and all or substantially all of the Company’s assets determined on a consolidated basis for the Company and its Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
), (ix) will shall be an entity a Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes Securities and this Indenture on the part of the Company or the Issuer, as applicable, to be performed or observedobserved and such other agreements as necessary;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), either (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness Indebtedness, other than Permitted Indebtedness, pursuant to Section 3.8(a) 4.04 or (B) the Consolidated Leverage Fixed Charge Coverage Ratio of for the Successor Company and its Restricted Subsidiaries or such Surviving Entity, as the case may be, immediately following such transaction would be less equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;; and
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of Company, the Successor Company in respect of this Indenture and the Notes; and
(5) the Company Issuer or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ Officer’s Certificate of the Issuer and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, shall comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction execution of such supplemental indenture have been complied withsatisfied. For purposes of this Section 4.1the foregoing, the transfer (transfer, by lease, assignment, sale or otherwise, in a single transaction or series of transactions) , of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, other than to a Wholly Owned Restricted Subsidiary of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) . Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries or the Issuer, as applicable, in accordance with this Section 4.1the foregoing, in which the Company or the Issuer, as applicable, is not the continuing corporationPerson, the Successor Company successor Person formed by such consolidation or into which the Company or the Issuer, as applicable, is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Issuer, as applicable, under this Indenture and the Notes Securities with the same effect as if such Successor Company Surviving Entity had been named as suchsuch and the Company or the Issuer, as applicable, shall be relieved of all of its obligations and duties under this Indenture and the Securities. For Each Guarantor (other than the avoidance Company), other than any Guarantor whose Guarantee is to be released in accordance with the terms of doubtthe Guarantee and this Indenture, compliance will not, and the Company will not cause or permit any such Guarantor to, consolidate with or merge with or into any Person other than the Company, the Issuer or any other Guarantor unless:
(1) the entity formed by or surviving any such consolidation or merger, if other than such Guarantor, or to which such sale, lease, conveyance or other disposition shall have been made is a Person organized and existing under the laws of the United States or any State thereof or the District of Columbia;
(2) such entity assumes by supplemental indenture all of the obligations of such Guarantor under the Guarantee and; and
(3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Any merger or consolidation of a Guarantor (other than the Company) with and into the Company or the Issuer, with the Company or the Issuer being the Surviving Entity, or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company need not comply with this Section 4.1 will not affect 5.01. If and for so long as any Securities are listed on the Obligations Exchange and if and to the extent the rules of the Company (including Exchange so require, the Issuer will publish a Successor Companynotice of any consolidation or merger described above, if applicable) under Section 3.21or any sale, if applicable.
(d) Notwithstanding anything to the contrary hereinassignment, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole mayconveyance, directly or indirectlytransfer, lease or other disposition of all or substantially all of the assets of the Issuer and its or their respective properties or assets considered Restricted Subsidiaries, taken as one enterprisea whole, described above, in one or more related transactionsa leading English language newspaper having general circulation in Europe or, to the extent and in the manner permitted by such rules, post such announcement on the official website of the Exchange (xxxx://xxx.xxxxxxxxx.xxx/) and, for so long as the rules of the Exchange so require, notify the Exchange of any other Personsuch transaction.
Appears in 1 contract
Samples: Indenture (Scientific Games Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity"); (ix) will shall be an entity ---------------- a corporation, partnership, trust or a limited liability company organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee)indenture, executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes and Securities, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to ; provided that if at any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) time the Company or the Successor Surviving Entity is a -------- limited liability company, partnership or trust, there shall be a co-issuer of the Securities that is a Restricted Subsidiary of the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with this Indenture and that all conditions precedent in this Indenture relating to is a corporation organized and existing under the transaction have been complied with. laws of the United States or any State thereof or
(b) For purposes of this Section 4.1the foregoing paragraph (a), the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2Section 4.16) shall not, and 4.1(a)(5) above will the Company shall not apply cause or permit any Guarantor to:
(1) , con- solidate with or merge with or into any transfer of the properties or assets of a Restricted Subsidiary to Person other than the Company or to another Restricted Subsidiary;
any other Guarantor unless: (2i) subject to Section 10.3the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) is a corporation, any merger of a Restricted Subsidiary into partnership, trust or limited liability company organized and existing under the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State laws of the United States or in another province any State thereof or under the federal laws District of CanadaColumbia; (ii) such entity assumes by supplemental indenture all of the obligations of the Guarantor on the Guarantee; (iii) immediately after giving effect to such transaction, so long as, in each caseno Default or Event of Default shall have occurred and be continuing; and (iv) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the Indebtedness Company could --- ----- satisfy the provisions of clause (a) (ii) of this Section 5.01. Any merger or consolidation of a Guarantor with and into the Company (with the Company being the surviving entity) or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company and its Restricted Subsidiaries taken as a whole is not increased therebyneed only comply with clause (a) (iv) of Section 5.01.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes Securities and this Indenture on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (1) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (2) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.03; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied withsatisfied. For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) , of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of Sections 4.1(a)(2its Guarantee and this Indenture in connection with any transaction complying with Section 4.06) shall not, and 4.1(a)(5) above will the Company shall not apply cause or permit any Guarantor to:
(1) , consolidate with or merge with or into any transfer of the properties or assets of a Restricted Subsidiary to Person other than the Company or any other Guarantor unless: (i) the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) or to another Restricted Subsidiary;
(2) subject to Section 10.3which such sale, any merger of assignment, transfer, lease, conveyance or other disposition shall have been made is a Restricted Subsidiary into corporation organized and existing under the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State laws of the United States or in another province any State thereof or under the federal laws District of CanadaColumbia; (ii) such entity assumes by supplemental indenture all of the obligations of the Guarantor on its Guarantee; (iii) immediately after giving effect to such transaction, so long as, in each caseno Default or Event of Default shall have occurred and be continuing; and (iv) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the Indebtedness Company could satisfy the provisions of clause (ii) of paragraph (a) above. Any merger or consolidation of a Guarantor with and into the Company (with the Company being the surviving entity) or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company and its Restricted Subsidiaries taken as a whole is not increased therebyneed only comply with clause (iv) of paragraph (a) above.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Carrols Corp)
Merger, Consolidation and Sale of Assets. (ai) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted the Company's Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted 's Subsidiaries substantially as an entirety (the “Successor Company”):
"SURVIVING ENTITY") (ix) will shall be an entity organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture assume (in form and substance reasonably satisfactory to the TrusteeRequired Holders), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture Agreement on the part of the Company to be performed or observed;
; (2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3ii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted or anticipated to be granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iii) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee Holders an Officers’ Certificate officers' certificate and an Opinion opinion of Counselcounsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if required in connection complies with such transaction, the supplemental indenture, comply with applicable provisions of this Indenture Agreement and that all conditions precedent in this Indenture Agreement relating to the such transaction have been complied with. For purposes of this Section 4.1, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Companysatisfied.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Artistdirect Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the Company’s properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for (other than sales, assignments, transfers, leases, conveyances and other dispositions of Securitization Assets, Repurchase Agreement Assets, Investments or other securities or assets, in each case in the Company and its Restricted Subsidiaries), ordinary course of business) to any Person, unless:
(1) either:
(A) the Company shall be the surviving or continuing corporationPerson; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and all or substantially all of the Company’s Restricted Subsidiaries substantially as an entirety properties and assets (the “Successor CompanySurviving Entity”):
(i) will shall be an entity organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the NotesColumbia; and
(ii) will shall expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee)indenture, executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of in the Notes and this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and and, if applicable, the assumption contemplated by clause (1)(B)(iiSection 5.01(a)(1)(B)(ii) above (including giving effect on a pro forma basis effect to any IndebtednessIndebtedness and Acquired Indebtedness incurred and any repayment, including any Acquired Indebtednessrepurchase, Incurred defeasance, redemption or anticipated to be Incurred in connection with or in respect other discharge of such transaction), (A) Indebtedness by the Company or such Successor Companythe Surviving Entity, as the case may be, is or any of their respective Subsidiaries in connection with such transaction), the Company or such Surviving Entity, as the case may be: (a) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction, in each case determined as of the end of the most recent fiscal quarter ending on or prior to the date of such transaction for which financial statements of the Company or the Surviving Entity, as the case may be, are available; or (b) shall be able to Incur incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) 4.07(b); or (Bc) shall have a Consolidated Fixed Charge Coverage Ratio that is equal to or greater than the Consolidated Leverage Fixed Charge Coverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transactiontransaction (the computations required by clauses (b) and (c) above shall be computed on a pro forma basis giving effect to such transaction as if it had occurred at the beginning of the most recent Four Quarter Period ended on or prior to the date of such transaction for which financial statements of the Company or the Surviving Entity, as the case may be, are available and the other pro forma adjustments set forth in the definition of “Consolidated Fixed Charge Coverage Ratio”). If the transaction involves a Surviving Entity and the Company and the Surviving Entity have different fiscal quarters, then the relevant Four Quarter Period and, for purposes of clause (a) of this paragraph (2), the relevant fiscal quarter, may, at the election of the Company, be based on either the Company’s or the Surviving Entity’s fiscal quarters;
(3) immediately before and immediately after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation of the assumption contemplated Company or the Surviving Entity, as the case may be, or any of its Subsidiaries as a result of such transaction as having been incurred by clause (1)(B)(ii) above (includingthe Company or the Surviving Entity, without limitationas the case may be, giving effect on a pro forma basis to or such Subsidiary at the time of such transaction, and any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated Indebtedness to be Incurred and repaid, repurchased, defeased, redeemed or otherwise discharged by the Company or the Surviving Entity or any Lien granted of their respective Subsidiaries in connection with such transaction as having been repaid, repurchased, defeased, redeemed or in respect otherwise discharged at the time of such transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) if the Surviving Entity is not the Company, each Note Guarantor (including Persons that become Note Guarantors as a result of such transactionunless it is the Surviving Entity, in which case Section 5.01(a)(1)(B) has confirmed above shall apply) shall have by supplemental indenture confirmed that its Note Guarantee will of the Notes shall apply to the Obligations of the Successor Company in respect of such Surviving Entity’s obligations under this Indenture and the Notes; and
(5) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of CounselCounsel (which Opinion of Counsel may be subject to customary assumptions, limitations and exceptions), each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture Indenture.
(b) Notwithstanding the provisions of Section 5.01(a), any Subsidiary of the Company may merge or consolidate with or into or transfer all or any part of its properties and that all conditions precedent in this Indenture relating assets to the transaction have been complied with. Company or any other Subsidiary of the Company and Sections 5.01(a) and (f) shall not apply to any such transaction.
(c) For purposes of this Section 4.1the foregoing, the transfer (by sale, assignment, sale transfer, lease, conveyance or otherwiseother disposition, in a single transaction or series of related transactions) , of all or substantially all of the properties or and assets of one or more Restricted Subsidiaries of the CompanyCompany (other than sales, assignments, transfers, leases, conveyances and other dispositions of Securitization Assets, Repurchase Agreement Assets, Investments or other securities or assets, in each case in the ordinary course of business), the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)basis, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bd) The provisions For purposes of Sections 4.1(a)(2) clarity, it is understood and 4.1(a)(5) above will not apply to:
agreed that references in this Section 5.01 to sales, assignments, transfers, leases, conveyances and other dispositions of Securitization Assets, Repurchase Agreement Assets, Investments or other securities or assets in the ordinary course of business shall include, without limitation, any sales, assignments, transfers, leases, conveyances or other dispositions of Securitization Assets, Repurchase Agreement Assets, Investments or other securities or assets (1) that are made (x) to any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created Securitization Entity for the purpose of holding enabling such Securitization Entity to securitize the Capital Stock assets so sold, assigned, transferred, leased, conveyed or disposed of or enabling such Securitization Entity to issue Non-Recourse Indebtedness secured by such assets or to enter into any Repurchase Agreements with respect to such assets or (y) to any Person pursuant to a Repurchase Agreement that is otherwise permitted (or not prohibited) by this Indenture, under which such Person is a buyer of Repurchase Agreement Assets, and (2) that the Company in good faith determines to be consistent with past practice of the Company or any of its Subsidiaries or to reflect customary or accepted practice in the businesses, industries or markets in which the Company or any of its Subsidiaries operates or reasonably expects to operate or that reflect reasonable extensions, evolutions or developments of any of the foregoing (including, without limitation, by way of new transactions or structures), and as a result, none of the foregoing shall constitute a sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the Company; or
(4) ’s properties and assets, on a merger between the Company and a newly-created Affiliate incorporated solely consolidated basis or otherwise, for the purpose of reincorporating the Company in another State purposes of the United States or in another province or under the federal laws other paragraphs of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased therebythis Section 5.01.
(ce) Upon any consolidation, combination consolidation or merger or any transfer sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties and or assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, the foregoing in which the Company is not the surviving or continuing corporationentity, as the case may be, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company Surviving Entity had been named as such. For the avoidance of doubt“Company” herein and therein, compliance with this Section 4.1 will not affect the Obligations of and the Company (including shall be released from all of its obligations under this Indenture, the Notes and all Registration Rights Agreements; provided that, in the case of a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease of all or substantially all of the properties and assets of the Company, the Company will not be released from its or their respective properties or assets considered obligation to pay the principal of and premium, if any, and interest on the Notes.
(f) If the Surviving Entity in any transaction described in, and made in compliance with, this Section 5.01 shall be a Guarantor of the Notes, such Guarantor shall be released from its Guarantee of the Notes and all of its other obligations as one enterprise, in one or more related transactions, to any other Persona Guarantor under this Indenture.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person or consummate a Delaware LLC Division (whether or not the Company is the surviving Person or continuing Personsuccessor, as applicable), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1i) either:
either (A) the Company shall be the surviving or continuing corporation; or
Person or (B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or divided or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
) (ix) will shall be an entity a Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture to this Indenture and by joinder to the Notes Security Documents to which the Company is a party (in form reasonably satisfactory to the Trustee), executed and delivered to the TrusteeTrustee and the Collateral Agent, as applicable, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture and the Notes Security Documents on the part of the Company to be performed or observed;
(2ii) immediately after giving effect to such transaction on a pro forma basis and the assumption contemplated by Section 501(a)(i)(B)(y) (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), either (x) the Company or such Surviving Entity, as the case may be, shall be able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 407 or (y) the pro forma Consolidated Fixed Charge Coverage Ratio for the Company or such Surviving Entity and its Restricted Subsidiaries would be equal to or greater than the Consolidated Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries immediately prior, and without giving pro forma effect, to such transaction; provided, however, that this clause shall not be effective during any Suspension Period as described under Section 416;
(iii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iiSection 501(a)(i)(B)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted or to be released in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture and joinder to the Notes Security Documents are required in connection with such transaction, the such supplemental indenture, indenture and joinder comply with the applicable provisions of this Indenture and the Notes Security Documents and that all conditions precedent in this Indenture and the Notes Security Documents relating to the such transaction have been complied with. satisfied; For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries, which properties and assets, if held by the Company instead of such Restricted Subsidiaries of the Company, the Capital Stock of which constitutes would constitute all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
Company on a consolidated basis. Notwithstanding the foregoing clauses (b) The provisions of Sections 4.1(a)(2ii) and 4.1(a)(5(iii) above will not apply to:
of Section 501(a), (1) any transfer of the properties or assets of a Restricted Subsidiary may consolidate with or merge with or into or wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company or to another Restricted Subsidiary;
any Guarantor; (2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
any Guarantor may consolidate with, merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company or any Guarantor; (3) any merger the Company may consolidate with or merge with or into or wind up into an Affiliate of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating or reorganizing the Company in another State a state of the United States or in another province or under the federal laws District of Canada, Columbia so long as, in each case, as (i) the amount of Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
thereby and (cii) Upon any consolidation, combination or merger the Surviving Entity complies with subclauses (x) and (y) of Section 501(a)(i)(B); (4) to the Company or any transfer of all its Subsidiaries may be converted into, or substantially all reorganized or reconstituted as a limited liability company, limited partnership or corporation in a state of the properties United States or the District of Columbia; and assets of (5) the Company and or a Restricted Subsidiary may change its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicablename.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Phinia Inc.)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) after the Issue Date all or substantially all of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation ---------------- organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes and Securities, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.03; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the CompanySubsidiaries, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The No Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2Section 4.12) will, and 4.1(a)(5) above the Company will not apply cause or permit any Guarantor to:
(1) , consolidate with or merge with or into any transfer of the properties or assets of a Restricted Subsidiary to Person other than the Company or to another Restricted Subsidiary;
any other Guarantor unless: (2i) subject to Section 10.3, the entity formed by or surviving any such consolidation or merger of (if other than the Guarantor) is a Restricted Subsidiary into corporation organized and existing under the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State laws of the United States or in another province any State thereof or under the federal laws District of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
Columbia; (cii) Upon any consolidation, combination or merger or any transfer of all or substantially such entity assumes by supplemental indenture all of the properties and assets obligations of the Guarantor under this Indenture, such Guarantor's Guarantee and the Registration Rights Agreement; (iii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; (iv) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the Company and its Restricted Subsidiaries in accordance with could --- ----- satisfy the provisions of clause (a)(ii) of this Section 4.1, in which 5.01; and (v) the Company is not shall have delivered to the continuing corporationTrustee an Officers' Certificate and Opinion of Counsel, the Successor Company formed by each stating that such consolidation or into which merger and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under applicable provisions of this Indenture and the Notes with the same effect as if that all conditions precedent in this Indenture relating to such Successor Company had transaction have been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicablesatisfied.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Stoneridge Inc)
Merger, Consolidation and Sale of Assets. (a) The Company Issuer will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and assets of owned directly or indirectly by the Company or the Company and its Restricted Subsidiaries taken as a whole Issuer (determined on a consolidated basis for the Company Issuer and its Restricted Subsidiaries), whether as an entirety or substantially as an entirety to any Person, Person unless:
: (1a) either:
either (Ai) the Company Issuer shall be the surviving or continuing corporation; or
corporation or (Bii) the Person (if other than the CompanyIssuer) formed by such consolidation or into which the Company Issuer is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company Issuer and of the Company’s Restricted its Subsidiaries substantially as an entirety (the “Successor Company”):
"SURVIVING ENTITY") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State state thereof or the District of Columbia or Columbia; and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and the Security Documents on the part of the Company Issuer to be performed or observed;
; (2b) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iia)(ii)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such transaction), (A) the Company Issuer or such Successor CompanySurviving Entity, as the case may be, is able (i) shall have a Consolidated Net Worth equal to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) greater than the Consolidated Leverage Ratio Net Worth of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries Issuer immediately prior to such transaction;
, and (3ii) both (x) the Issuer's or such Surviving Entity's (calculated as if such Surviving Entity was the Issuer) as the case may be, Consolidated EBITDA Coverage Ratio is at least equal to 2.5 to 1.0; and (y) the Issuer's or such Surviving Entity's (calculated as if such Surviving Entity was the Issuer), as the case may be, Adjusted Consolidated Net Tangible Assets are equal to or greater than 150% of the aggregate consolidated Indebtedness of the Issuer and its Subsidiaries; (c) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iia)(ii)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5d) the Company Issuer or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with this Indenture the applicable provisions hereof and that all conditions precedent in this Indenture relating to the such transaction have been complied withsatisfied; PROVIDED, HOWEVER, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of the Issuer. For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Issuer, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
Issuer. Each Subsidiary Guarantor (b) The other than any Subsidiary Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2this Indenture described under this Section 5.01) will not, and 4.1(a)(5) above the Issuer will not apply cause or permit any Subsidiary Guarantor to:
(1) , consolidate with or merge with or into any transfer of Person other than the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company Issuer or another Restricted Subsidiary;
(3) any merger of the Company into Subsidiary Guarantor that is a Wholly Owned Subsidiary of unless: (a) the Company created for entity formed by or surviving any such consolidation or merger (if other than the purpose of holding Subsidiary Guarantor) is a Person organized and existing under the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State laws of the United States or in another any state thereof or the District of Columbia (or if such Subsidiary Guarantor was formed under the laws of Canada or any province or territory thereof, such Surviving Entity shall be a Person organized and validly existing under the federal laws of Canada, so long as, in each case, the Indebtedness Canada or any province or territory thereof); (b) such entity assumes by execution of a supplemental indenture all of the Company and obligations of the Subsidiary Guarantor under its Restricted Subsidiaries taken as a whole is not increased thereby.
Guarantee; (c) Upon any consolidationimmediately after giving effect to such transaction, combination no Default or merger or any transfer Event of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, Default shall have occurred and be substituted for, continuing; and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything immediately after giving effect to such transaction and the contrary hereinuse of any net proceeds therefrom on a PRO FORMA basis, neither the Company nor Issuer could satisfy the Company provisions of clause (b) of the first paragraph of this Section 5.01. Any merger or consolidation of a Subsidiary Guarantor with and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all into the Issuer (with the Issuer being the Surviving Entity) need only comply with clause (d) of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Personthe first paragraph of this Section 5.01.
Appears in 1 contract
Samples: Indenture (Abraxas Petroleum Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted the Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
either (A) the Company shall be the surviving or continuing corporation; or
corporation or (B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
) (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or Columbia, and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this the Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted or to be released in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(53) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with this the applicable provisions of the Indenture and that all conditions precedent in this the Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the CompanySubsidiaries, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The provisions No Guarantor (other than any Guarantor whose Subsidiary Guarantee is to be released in accordance with the terms of Sections 4.1(a)(2the Subsidiary Guarantee and this Second Supplemental Indenture) will, and 4.1(a)(5) above the Company will not apply cause or permit any Guarantor to, consolidate with or merge with or into any Person other than the Company or any other Guarantor unless:
(1) the entity formed by or surviving any transfer such consolidation or merger (if other than the Guarantor) is a corporation organized and existing under the laws of the properties United States or assets any State thereof or the District of a Restricted Subsidiary to the Company or to another Restricted SubsidiaryColumbia;
(2) subject such entity expressly assumes by supplemental indenture (in form and substance satisfactory to Section 10.3the Trustee), any merger executed and delivered to the Trustee, the performance of a Restricted Subsidiary into every covenant of the Company Notes and the Indenture on the part of such Guarantor to be performed or another Restricted Subsidiaryobserved;
(3) any merger immediately after giving effect to such transaction, no Default or Event of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the CompanyDefault shall have occurred and be continuing; orand
(4) a merger between the Company shall have delivered to the Trustee an Officers’ Certificate and a newly-created Affiliate incorporated solely for the purpose Opinion of reincorporating the Company in another State of the United States or in another province or under the federal laws of CanadaCounsel, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by stating that such consolidation or into which merger and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, applicable provisions of the Company under this Indenture and that all conditions precedent in the Notes with the same effect as if Indenture relating to such Successor Company had transaction have been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicablesatisfied.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
either (A) the Company shall be the surviving or continuing corporation; or
corporation or (B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
) (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or Columbia, and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes obligations of the Company under its Note Guarantee and the performance and observance of every covenant of the Notes Note Guarantee and this the Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction on a pro forma basis and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Indebtedness Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) 4.03 or (B) the Consolidated Leverage Fixed Charge Coverage Ratio of the Successor Company and its Restricted Subsidiaries would be less or the Surviving Entity, as the case may be, is greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; provided, however, that this clause (2) shall not be effective during any Suspension Period as described under Section 4.18;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Indebtedness Incurred or anticipated to be Incurred and any Lien granted or to be released in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(54) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with this the applicable provisions of the Indenture and that all conditions precedent in this the Indenture relating to the such transaction have been complied with. satisfied; provided that clauses (2) and (3) above do not apply to the consolidation or merger of the Company with or into, or the sale by the Company of all or substantially all its assets to, a Wholly Owned Restricted Subsidiary or the consolidation or merger of a Wholly Owned Restricted Subsidiary with or into, or the sale by such Subsidiary of all or substantially all of its assets to, the Company.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the CompanySubsidiaries, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The provisions of Sections 4.1(a)(2) Issuer will not, and 4.1(a)(5) above the Company will not apply permit the Issuer to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each casea single transaction or series of related transactions, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon consolidate or merge with or into any consolidationPerson, combination or merger sell, assign, transfer, lease, convey or any transfer otherwise dispose of all or substantially all of the properties and Issuer’s assets of whether as an entirety or substantially as an entirety to any Person unless:
(1) either (A) the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which Issuer shall be the Company is not surviving or continuing entity or (B) the continuing corporation, Person (if other than the Successor Company Issuer) formed by such consolidation or into which the Company Issuer is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Issuer substantially as an entirety (the “Surviving Issuer”) shall expressly assume, by supplemental indenture (in form and substance satisfactory to which such conveyancethe Trustee), lease or transfer is made will succeed toexecuted and delivered to the Trustee, the due and punctual payment of the principal of, and be substituted forpremium, if any, and may exercise interest on all of the notes and the performance of every right covenant of the Notes and power ofthe Indenture on the part of the Issuer to be performed or observed;
(2) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness Incurred or anticipated to be Incurred and any Lien granted or to be released in connection with or in respect of the transaction), no Default or Event of Default shall have occurred and be continuing; and
(3) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of the Indenture and that all conditions precedent in the Indenture relating to such transaction have been satisfied; provided that clause (2) does not apply to the consolidation or merger of the Issuer with or into, or the sale by the Issuer of all or substantially all its assets to, the Company under this Indenture and or a Wholly Owned Restricted Subsidiary or the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations consolidation or merger of the Company (including or a Successor CompanyWholly Owned Restricted Subsidiary with or into, if applicable) under Section 3.21, if applicablethe Issuer.
(d) Notwithstanding anything No Subsidiary Guarantor (other than any Subsidiary Guarantor whose Note Guarantee is to be released in accordance with the contrary hereinterms of the Note Guarantee and the Indenture in connection with any transaction complying with the provisions of Section 4.05) will, neither and the Company nor will not cause or permit any Subsidiary Guarantor to, consolidate with or merge with or into any Person other than the Company or any other Subsidiary Guarantor unless:
(1) (A) either (x) the Subsidiary Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person is a corporation organized and its Restricted Subsidiaries taken as a whole may, directly existing under the laws of the United States or indirectly, lease all any State thereof or substantially the District of Columbia or the jurisdiction of such Subsidiary Guarantor and expressly assumes by supplemental indenture all of the obligations of the Subsidiary Guarantor under its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.Note Guarantee; and
Appears in 1 contract
Samples: Indenture (Dana Holding Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Personcorporation), or sell, assign, transfer, lease, convey or 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 of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted the Company’s Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
) (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any and Additional Amounts)Interest, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes Securities and this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than 4.04 unless such ratio transaction is solely to form a new holding company for the Company and its Restricted Subsidiaries immediately prior to such transaction;
Company; (3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing paragraph (a), the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Leslies Poolmart Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assignas sign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes and Securities, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (1) shall have a Consolidated Tangible Net Worth equal to or greater than the Consolidated Tangible Net Worth of the Company immediately prior to such transaction and (2) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.04; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately immedi- ately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Sheffield Steel Corp)
Merger, Consolidation and Sale of Assets. (a) The Except for the Transaction Mergers, the Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted the Company's Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted 's Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any and Additional Amounts)Interest, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes Securities and this Indenture on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (1) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (2) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.04; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing paragraph (a), the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Leslies Poolmart Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or a series of related transactions, consolidate with or merge with or into any Person (whether or not other than the merger of a Wholly Owned Subsidiary of the Company is into the surviving or continuing PersonCompany), or sell, assign, transfer, lease, convey or 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 of the Company's properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), ) to any Person, Person whether as an entirety or substantially as an entirety unless:
(1) either:
either (A) the Company shall be the surviving or continuing corporation; or
corporation or (B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted its Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation or limited liability company organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and, if applicable, the Note Registration Rights Agreement on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (i) shall be able to Incur incur at least $1.00 of additional Indebtedness pursuant (other than Permitted Indebtedness) in compliance with Section 4.12 and (ii) shall have a Consolidated Net Worth at least equal to Section 3.8(a) or (B) the Consolidated Leverage Ratio Net Worth of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(54) the Company or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or and assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer . When a successor assumes all of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger obligations of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, Notes and this Indenture in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with transaction permitted by this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of5.01, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicablebe deemed to be released from those obligations.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
either (A) the Company or a Restricted Subsidiary of the Company shall be the surviving or continuing corporation; or
corporation or (B) the Person (Person, if other than the Company or a Restricted Subsidiary of the Company) , formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties and Company's assets of determined on a consolidated basis for the Company and of the Company’s its Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (indenture, in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes and Securities, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (1) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (2) shall be able to Incur incur at least $1.00 of additional Indebtedness Indebtedness, other than Permitted Indebtedness, pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction4.04;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(54) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture shall comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction execution of such supplemental indenture have been complied withsatisfied. For purposes of this Section 4.1the foregoing, the transfer (transfer, by lease, assignment, sale or otherwise, in a single transaction or series of transactions) , of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, other than to a Wholly Owned Subsidiary that is a Guarantor, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) . Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1the foregoing, in which the Company is not the continuing corporation, the Successor Company successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes Securities with the same effect as if such Successor Company surviving entity had been named as suchsuch and the Company shall be relieved of all of its obligations and duties under this Indenture and the Securities. For Each Guarantor, other than any Guarantor whose Guarantee is to be released in accordance with the avoidance terms of doubtthe Guarantee and this Indenture, compliance will not, and the Company will not cause or permit any Guarantor to, consolidate with or merge with or into any Person other than the Company or any other Guarantor unless:
(1) the entity formed by or surviving any such consolidation or merger, if other than the Guarantor, or to which such sale, lease, conveyance or other disposition shall have been made is a corporation organized and existing under the laws of the United States or any State thereof or the District of Columbia;
(2) such entity assumes by supplemental indenture all of the obligations of the Guarantor on the Guarantee;
(3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(4) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the Company could satisfy the provisions of clause (2) of the first paragraph of this Section 5.01. Any merger or consolidation of a Guarantor with and into the Company, with the Company being the surviving entity, or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company need not comply with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable5.01.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Autotote Corp)
Merger, Consolidation and Sale of Assets. (a) The Neither the Company will notnor the Issuer will, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
either (A) the Company, the Issuer or a Restricted Subsidiary of the Company shall be the surviving or continuing corporation; or
Person or (B) the Person (Person, if other than the Company) , the Issuer or a Restricted Subsidiary of the Company, formed by such consolidation or into which the Company or the Issuer is merged or the Person which that acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and all or substantially all of the Company’s assets determined on a consolidated basis for the Company and its Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
), (ix) will shall be an entity a Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the TrusteeTrustee and the Collateral Agent, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes Securities, this Indenture, the Security Documents and this Indenture the Intercreditor Agreement on the part of the Company or the Issuer, as applicable, to be performed or observedobserved and such other agreements as necessary;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), either (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness Indebtedness, other than Permitted Indebtedness, pursuant to Section 3.8(a) 4.04 or (B) the Consolidated Leverage Fixed Charge Coverage Ratio of for the Successor Company and its Restricted Subsidiaries or such Surviving Entity, as the case may be, immediately following such transaction would be less equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of Company, the Successor Company in respect of this Indenture and the Notes; and
(5) the Company Issuer or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee and the Collateral Agent an Officers’ Officer’s Certificate of the Issuer and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, shall comply with the applicable provisions of this Indenture (and any supplement to any Security Document if required in connection with such transaction) and that all conditions precedent in this Indenture relating to the transaction execution of such supplemental indenture have been complied withsatisfied;
(5) the Surviving Entity promptly causes such amendments, supplements or other instruments to be executed, delivered, filed and recorded, as applicable, in such jurisdictions as may be reasonably required by applicable law to preserve and protect the Lien on the Security Documents on the Collateral owned by or transferred to the Surviving Entity;
(6) the Collateral owned by or transferred to the Surviving Entity, as applicable, shall (a) continue to constitute Collateral under this Indenture and the Security Documents, (b) be subject to the perfected first priority Lien in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Securities, and (c) not be subject to any Lien other than Permitted Liens; and
(7) the property and assets of the Person which is merged or consolidated with or into the Surviving Entity, as applicable, to the extent that they are property or assets or of the types which would constitute Collateral under the Security Documents, shall be treated as after-acquired property and 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 on the Security Documents in the manner and to the extent required in Section 4.20. For purposes of this Section 4.1the foregoing, the transfer (transfer, by lease, assignment, sale or otherwise, in a single transaction or series of transactions) , of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, other than to a Wholly Owned Restricted Subsidiary of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) . Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries or the Issuer, as applicable, in accordance with this Section 4.1the foregoing, in which the Company or the Issuer, as applicable, is not the continuing corporationPerson, the Successor Company successor Person formed by such consolidation or into which the Company or the Issuer, as applicable, is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Issuer, as applicable, under this Indenture and the Notes Securities with the same effect as if such Successor Company Surviving Entity had been named as suchsuch and the Company or the Issuer, as applicable, shall be relieved of all of its obligations and duties under this Indenture and the Securities. For Each Guarantor (other than the avoidance Company), other than any Guarantor whose Guarantee is to be released in accordance with the terms of doubtthe Guarantee and this Indenture, compliance will not, and the Company will not cause or permit any such Guarantor to, consolidate with or merge with or into any Person other than the Company, the Issuer or any other Guarantor unless:
(1) the entity formed by or surviving any such consolidation or merger, if other than such Guarantor, or to which such sale, lease, conveyance or other disposition shall have been made is a Person organized and existing under the laws of the United States or any State thereof or the District of Columbia (the “Guarantor Surviving Entity”);
(2) such entity assumes by supplemental indenture all of the obligations of such Guarantor under the Guarantee and all of the obligations of such Guarantor under the Security Documents;
(3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(4) the Guarantor Surviving Entity promptly causes such amendments, supplements or other instruments to be executed, delivered, filed and recorded, as applicable, in such jurisdictions as may be reasonably required by applicable law to preserve and protect the Lien on the Security Documents on the Collateral owned by or transferred to the Guarantor Surviving Entity;
(5) the Collateral owned by or transferred to the Guarantor Surviving Entity shall (a) continue to constitute Collateral under this Indenture and the Security Documents, (b) be subject to the perfected first priority Lien in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Securities, and (c) not be subject to any Lien other than Permitted Liens; and
(6) the property and assets of the Person which is merged or consolidated with or into the Guarantor Surviving Entity to the extent that they are property or assets or of the types which would constitute Collateral under the Security Documents, shall be treated as after-acquired property and the Guarantor Surviving Entity shall take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien on the Security Documents in the manner and to the extent required in Section 4.20. Any merger or consolidation of a Guarantor (other than the Company) with and into the Company or the Issuer, with the Company or the Issuer being the Surviving Entity, or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company need not comply with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable5.01.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Scientific Games Corp)
Merger, Consolidation and Sale of Assets. (a) The Neither the Company will notnor the Issuer will, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
either (A) the Company, the Issuer or a Restricted Subsidiary of the Company shall be the surviving or continuing corporation; or
Person or (B) the Person (Person, if other than the Company) , the Issuer or a Restricted Subsidiary of the Company, formed by such consolidation or into which the Company or the Issuer is merged or the Person which that acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and all or substantially all of the Company’s assets determined on a consolidated basis for the Company and its Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
), (ix) will shall be an entity a Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes Securities and this Indenture on the part of the Company or the Issuer, as applicable, to be performed or observedobserved and such other agreements as necessary;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (of this Section 5.01, including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), either (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness Indebtedness, other than Permitted Indebtedness, pursuant to Section 3.8(a) 4.04 or (B) the Consolidated Leverage Fixed Charge Coverage Ratio of for the Successor Company and its Restricted Subsidiaries or such Surviving Entity, as the case may be, immediately following such transaction would be less equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (of this Section 5.01, including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;; and
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of Company, the Successor Company in respect of this Indenture and the Notes; and
(5) the Company Issuer or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ Officer’s Certificate of the Issuer and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, shall comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction execution of such supplemental indenture have been complied withsatisfied. For purposes of this Section 4.1the foregoing, the transfer (transfer, by lease, assignment, sale or otherwise, in a single transaction or series of transactions) , of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, other than to a Wholly Owned Restricted Subsidiary of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) . Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries or the Issuer, as applicable, in accordance with this Section 4.1the foregoing, in which the Company or the Issuer, as applicable, is not the continuing corporationPerson, the Successor Company successor Person formed by such consolidation or into which the Company or the Issuer, as applicable, is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Issuer, as applicable, under this Indenture and the Notes Securities with the same effect as if such Successor Company Surviving Entity had been named as suchsuch and the Company or the Issuer, as applicable, shall be relieved of all of its obligations and duties under this Indenture and the Securities. For Each Guarantor (other than the avoidance Company), other than any Guarantor whose Guarantee is to be released in accordance with the terms of doubtthe Guarantee and this Indenture, compliance will not, and the Company will not cause or permit any such Guarantor to, consolidate with or merge with or into any Person other than the Company, the Issuer or any other Guarantor unless:
(1) the entity formed by or surviving any such consolidation or merger, if other than such Guarantor, or to which such sale, lease, conveyance or other disposition shall have been made is a Person organized and existing under the laws of the United States or any State thereof or the District of Columbia;
(2) such entity assumes by supplemental indenture all of the obligations of such Guarantor under the Guarantee; and
(3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Any merger or consolidation of a Guarantor (other than the Company) with and into the Company or the Issuer, with the Company or the Issuer being the Surviving Entity, or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company need not comply with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable5.01.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Light & Wonder, Inc.)
Merger, Consolidation and Sale of Assets. (a) The Company Issuer will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any of its Restricted Subsidiary Subsidiaries to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Issuer’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company Issuer and its Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
either (A) the Company Issuer or a Restricted Subsidiary of the Issuer shall be the surviving or continuing corporation; or
Person or (B) the Person (Person, if other than the Company) Issuer or a Restricted Subsidiary of the Issuer, formed by such consolidation or into which the Company Issuer is merged or the Person which that acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of all or substantially all of the Company Issuer’s assets determined on a consolidated basis for the Issuer and of the Company’s its Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
), (ix) will shall be an entity a Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes and Securities, this Indenture and the Registration Rights Agreement to be performed or observed on the part of the Company to be performed or observedIssuer;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), either (A) the Company Issuer or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness Indebtedness, other than Permitted Indebtedness, pursuant to Section 3.8(a) 4.04 or (B) the Consolidated Leverage Fixed Charge Coverage Ratio of for the Successor Company and its Restricted Subsidiaries Issuer or such Surviving Entity, as the case may be, immediately following such transaction would be less equal to or greater than such ratio for the Company and its Restricted Subsidiaries Issuer immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;; and
(4) each Note Guarantor (including Persons that become Note Guarantors the Issuer or such Surviving Entity, as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) the Company or the Successor Company has case may be, shall have delivered to the Trustee an Officers’ Certificate and an Opinion of CounselCounsel (on which the Trustee may conclusively and exclusively rely), each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, shall comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction execution of such supplemental indenture have been complied withsatisfied. For purposes of this Section 4.1the foregoing, the transfer (transfer, by lease, assignment, sale or otherwise, in a single transaction or series of transactions) , of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the CompanyIssuer, other than to a Wholly Owned Restricted Subsidiary of the Issuer, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Issuer, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Issuer. Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries Issuer, in accordance with this Section 4.1the foregoing, in which the Company Issuer is not the continuing corporationPerson, the Successor Company successor Person formed by such consolidation or into which the Company Issuer is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company Issuer under this Indenture and the Notes Securities with the same effect as if such Successor Company Surviving Entity had been named as suchsuch and the Issuer shall be relieved of all of its obligations and duties under this Indenture and the Securities. For Notwithstanding the avoidance foregoing, the “Escrow Merger,” as described in the Offering Memorandum, may be completed without compliance with clause (2) or (3) above.
(b) Each Subsidiary Guarantor, other than any Subsidiary Guarantor whose guarantee is to be released in accordance with the terms of doubtthe Guarantee and this Indenture, compliance will not, and the Issuer will not cause or permit any such Subsidiary Guarantor to, consolidate with or merge with or into any Person other than the Issuer or any other Subsidiary Guarantor unless:
(1) the entity formed by or surviving any such consolidation or merger, if other than such Subsidiary Guarantor, or to which such sale, lease, conveyance or other disposition shall have been made is a Person organized and existing under the laws of the United States or any State thereof or the District of Columbia;
(2) such entity assumes by supplemental indenture all of the obligations of such Subsidiary Guarantor under the Guarantee; and
(3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Any merger or consolidation of a Subsidiary Guarantor with and into the Issuer, with the Issuer being the Surviving Entity, or into another Subsidiary Guarantor that is a Wholly Owned Restricted Subsidiary of the Issuer, need not comply with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable5.01.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Revlon Inc /De/)
Merger, Consolidation and Sale of Assets. (a) The Neither the Company will notnor the Issuer will, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
either (A) the Company, the Issuer or a Restricted Subsidiary of the Company shall be the surviving or continuing corporation; or
Person or (B) the Person (Person, if other than the Company) , the Issuer or a Restricted Subsidiary of the Company, formed by such consolidation or into which the Company or the Issuer is merged or the Person which that acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and all or substantially all of the Company’s assets determined on a consolidated basis for the Company and its Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
), (ix) will shall be an entity a Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the TrusteeTrustee and the Collateral Agent, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes Securities, this Indenture, the Security Documents and this Indenture the Intercreditor Agreement on the part of the Company or the Issuer, as applicable, to be performed or observedobserved and such other agreements as necessary;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), either (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness Indebtedness, other than Permitted Indebtedness, pursuant to Section 3.8(a) 4.04 or (B) the Consolidated Leverage Fixed Charge Coverage Ratio of for the Successor Company and its Restricted Subsidiaries or such Surviving Entity, as the case may be, immediately following such transaction would be less equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of Company, the Successor Company in respect of this Indenture and the Notes; and
(5) the Company Issuer or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee and the Collateral Agent an Officers’ Officer’s Certificate of the Issuer and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, shall comply with the applicable provisions of this Indenture (and any supplement to any Security Document if required in connection with such transaction) and that all conditions precedent in this Indenture relating to the transaction execution of such supplemental indenture have been complied withsatisfied;
(5) the Surviving Entity promptly causes such amendments, supplements or other instruments to be executed, delivered, filed and recorded, as applicable, in such jurisdictions as may be reasonably required by applicable law to preserve and protect the Lien on the Security Documents on the Collateral owned by or transferred to the Surviving Entity;
(6) the Collateral owned by or transferred to the Surviving Entity, as applicable, shall (a) continue to constitute Collateral under this Indenture and the Security Documents, (b) be subject to the perfected first priority Lien in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Securities, and (c) not be subject to any Lien other than Permitted Liens; and
(7) the property and assets of the Person which is merged or consolidated with or into the Surviving Entity, as applicable, to the extent that they are property or assets or of the types which would constitute Collateral under the Security Documents, shall be treated as after-acquired property and 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 on the Security Documents in the manner and to the extent required in Section 4.20. For purposes of this Section 4.1the foregoing, the transfer (transfer, by lease, assignment, sale or otherwise, in a single transaction or series of transactions) , of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, other than to a Wholly Owned Restricted Subsidiary of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) . Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries or the Issuer, as applicable, in accordance with this Section 4.1the foregoing, in which the Company or the Issuer, as applicable, is not the continuing corporationPerson, the Successor Company successor Person formed by such consolidation or into which the Company or the Issuer, as applicable, is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Issuer, as applicable, under this Indenture and the Notes Securities with the same effect as if such Successor Company Surviving Entity had been named as suchsuch and the Company or the Issuer, as applicable, shall be relieved of all of its obligations and duties under this Indenture and the Securities. For Each Guarantor (other than the avoidance Company), other than any Guarantor whose Guarantee is to be released in accordance with the terms of doubtthe Guarantee and this Indenture, compliance will not, and the Company will not cause or permit any such Guarantor to, consolidate with or merge with or into any Person other than the Company, the Issuer or any other Guarantor unless:
(1) the entity formed by or surviving any such consolidation or merger, if other than such Guarantor, or to which such sale, lease, conveyance or other disposition shall have been made is a Person organized and existing under the laws of the United States or any State thereof or the District of Columbia (the “Guarantor Surviving Entity”);
(2) such entity assumes by supplemental indenture all of the obligations of such Guarantor under the Guarantee and all of the obligations of such Guarantor under the Security Documents;
(3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(4) the Guarantor Surviving Entity promptly causes such amendments, supplements or other instruments to be executed, delivered, filed and recorded, as applicable, in such jurisdictions as may be reasonably required by applicable law to preserve and protect the Lien on the Security Documents on the Collateral owned by or transferred to the Guarantor Surviving Entity;
(5) the Collateral owned by or transferred to the Guarantor Surviving Entity shall (a) continue to constitute Collateral under this Indenture and the Security Documents, (b) be subject to the perfected first priority Lien in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Securities, and (c) not be subject to any Lien other than Permitted Liens; and
(6) the property and assets of the Person which is merged or consolidated with or into the Guarantor Surviving Entity to the extent that they are property or assets or of the types which would constitute Collateral under the Security Documents, shall be treated as after-acquired property and the Guarantor Surviving Entity shall take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien on the Security Documents in the manner and to the extent required in Section 4.20. Any merger or consolidation of a Guarantor (other than the Company) with and into the Company or the Issuer, with the Company or the Issuer being the Surviving Entity, or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company need not comply with this Section 4.1 will not affect 5.01. If and for so long as any Securities are listed on the Obligations Exchange and if and to the extent the rules of the Company (including Exchange so require, the Issuer will publish a Successor Companynotice of any consolidation or merger described above, if applicable) under Section 3.21or any sale, if applicable.
(d) Notwithstanding anything to the contrary hereinassignment, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole mayconveyance, directly or indirectlytransfer, lease or other disposition of all or substantially all of the assets of the Issuer and its or their respective properties or assets considered Restricted Subsidiaries, taken as one enterprisea whole, described above, in one or more related transactionsa leading English language newspaper having general circulation in Europe or, to the extent and in the manner permitted by such rules, post such announcement on the official website of the Exchange (xxxx://xxx.xxxxxxxxx.xxx/) and, for so long as the rules of the Exchange so require, notify the Exchange of any other Personsuch transaction.
Appears in 1 contract
Samples: Indenture (Scientific Games Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will notIssuer shall not consolidate with or merge with or into, or convey, transfer or lease, in a single one transaction or a series of related transactions, consolidate directly or merge with or into any Person (whether or not the Company is the surviving or continuing Person)indirectly, or sell, assign, transfer, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the its properties and or assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries)to, to any Person, unless:
(1) either:
(Ai) the Company shall be the resulting, surviving or continuing corporation; or
(B) the transferee Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanyIssuer”):
(i) will shall be an entity a Person organized and validly existing under the laws of (x) the United States or of America, any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if and the Successor Company is Issuer (if not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (xIssuer) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by a supplemental indenture (in form reasonably satisfactory to the Trustee)hereto, executed and delivered to the Trustee, in form satisfactory to the due and punctual payment Trustee, all the obligations of the principal ofIssuer under the Notes, and premium (including any Additional Amounts), if any, and interest on all of the Notes this Indenture and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observedRegistration Rights Agreement;
(2ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the assumption contemplated Successor Issuer or any Subsidiary thereof as a result of such transaction as having been Incurred by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred such Successor Issuer or anticipated to be Incurred in connection with or in respect such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) except with respect to the merger of AmSurg Escrow into AmSurg pursuant to Section 4.17 herein, immediately after giving pro forma effect to such transaction, (A) the Company or such Successor Company, as the case may be, is Issuer would be able to Incur at least an additional $1.00 of additional Indebtedness pursuant to Section 3.8(a4.06(a) or (B) the Consolidated Leverage Coverage Ratio of the for such Successor Company and its Restricted Subsidiaries Issuer would be less no worse than such ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(3iv) immediately before and immediately after giving effect each Subsidiary Guarantor, unless it is the other party to the transactions described above, in which case clause (i) shall apply, shall have confirmed in writing that its Subsidiary Guarantee shall apply to such transaction and Person’s obligation under the assumption contemplated by clause (1)(B)(ii) above (includingNotes, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the NotesRegistration Rights Agreement; and
(5v) except with respect to the Company or merger of AmSurg Escrow into AmSurg pursuant to Section 4.17 herein, the Successor Company has Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, conveyance merger or other disposition and, transfer and such supplemental indenture (if required in connection with such transaction, the supplemental indenture, any) comply with this Indenture Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and that all conditions precedent in this Indenture relating assets to the transaction have been complied with. Issuer (so long as no Capital Stock of the Issuer is distributed to any Person) or (B) the Issuer merging with an Affiliate of the Issuer solely for the purpose and with the sole effect of reincorporating the Issuer in another jurisdiction.
(b) For purposes of this Section 4.15.01, the transfer (by sale, lease, conveyance, assignment, sale transfer or otherwise, in a single transaction or series of transactions) other disposition of all or substantially all of the properties or and assets of one or more Restricted Subsidiaries of the CompanyIssuer, which properties and assets, if held by the Capital Stock Issuer instead of which constitutes such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company (determined Issuer on a consolidated basis for the Company and its Restricted Subsidiaries)basis, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the CompanyIssuer.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Amsurg Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
either (A) the Company shall be the surviving or continuing corporation; or
corporation or (B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
) (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or Columbia, and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes obligations of the Company under its Note Guarantee and the performance and observance of every covenant of the Notes Note Guarantee and this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction on a pro forma basis and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Indebtedness Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) 4.03 or (B) the Consolidated Leverage Fixed Charge Coverage Ratio of the Successor Company and its Restricted Subsidiaries would be less or the Surviving Entity, as the case may be, is greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; provided, however, that this clause (2) shall not be effective during any Suspension Period as described under Section 4.18;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Indebtedness Incurred or anticipated to be Incurred and any Lien granted or to be released in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(54) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied; provided that clauses (2) and (3) above do not apply to the consolidation or merger of the Company with or into, or the sale by the Company of all or substantially all its assets to, a Wholly Owned Restricted Subsidiary or the consolidation or merger of a Wholly Owned Restricted Subsidiary with or into, or the sale by such Subsidiary of all or substantially all of its assets to, the Company.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the CompanySubsidiaries, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The provisions of Sections 4.1(a)(2) Issuer will not, and 4.1(a)(5) above the Company will not apply permit the Issuer to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each casea single transaction or series of related transactions, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon consolidate or merge with or into any consolidationPerson, combination or merger sell, assign, transfer, lease, convey or any transfer otherwise dispose of all or substantially all of the properties and Issuer’s assets of whether as an entirety or substantially as an entirety to any Person unless:
(1) either (A) the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which Issuer shall be the Company is not surviving or continuing entity or (B) the continuing corporation, Person (if other than the Successor Company Issuer) formed by such consolidation or into which the Company Issuer is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Issuer substantially as an entirety shall expressly assume, by supplemental indenture (in form and substance satisfactory to which such conveyancethe Trustee), lease or transfer is made will succeed toexecuted and delivered to the Trustee, the due and punctual payment of the principal of, and be substituted forpremium, if any, and may exercise interest on all of the Notes and the performance of every right covenant of the Notes and power ofthis Indenture on the part of the Issuer to be performed or observed;
(2) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness Incurred or anticipated to be Incurred and any Lien granted or to be released in connection with or in respect of the transaction), no Default or Event of Default shall have occurred and be continuing; and
(3) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied; provided that clause (2) does not apply to the consolidation or merger of the Issuer with or into, or the sale by the Issuer of all or substantially all its assets to, the Company under this Indenture and or a Wholly Owned Restricted Subsidiary or the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations consolidation or merger of the Company (including or a Successor CompanyWholly Owned Restricted Subsidiary with or into, if applicable) under Section 3.21, if applicablethe Issuer.
(d) Notwithstanding anything No Subsidiary Guarantor (other than any Subsidiary Guarantor whose Note Guarantee is to be released in accordance with Section 10.05 in connection with any transaction complying with the contrary hereinprovisions of Section 4.05) will, neither and the Company nor will not cause or permit any Subsidiary Guarantor to, consolidate with or merge with or into any Person other than the Company and its Restricted Subsidiaries taken as a whole mayor any other Subsidiary Guarantor or sell, directly assign, transfer, lease, convey or indirectly, lease otherwise dispose of all or substantially all of its assets other than to the Company or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.Subsidiary Guarantor unless:
(1) (A) either (x) the Subsidiary Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person is a corporation organized and existing under the laws of the United States or any State thereof or the District of Columbia or the jurisdiction of such Subsidiary Guarantor and expressly assumes by supplemental indenture all of the obligations of the Subsidiary Guarantor under its Note Guarantee; and
Appears in 1 contract
Samples: Indenture (Dana Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (1) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (2) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.12; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Certificate officers' certificate and an Opinion opinion of Counselcounsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.15.01, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2Section 4.15) shall not, and 4.1(a)(5) above will the Company shall not apply cause or permit any Guarantor to:
(1) , consolidate with or merge with or into any transfer of the properties or assets of a Restricted Subsidiary to Person other than the Company or any other Guarantor unless: (i) the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) or to another Restricted Subsidiary;
(2) subject to Section 10.3which such sale, any merger of lease, conveyance or other disposition shall have been made is a Restricted Subsidiary into corporation organized and existing under the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State laws of the United States or in another province any State thereof or under the federal laws District of CanadaColumbia; (ii) such entity assumes by supplemental indenture all of the obligations of the Guarantor on the Guarantee; (iii) immediately after giving effect to such transaction, so long as, in each caseno Default or Event of Default shall have occurred and be continuing; and (iv) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a PRO FORMA basis, the Indebtedness Company could satisfy the provisions of clause (ii) of the first paragraph of this Section 5.01. Any merger or consolidation of a Guarantor with and into the Company (with the Company being the surviving entity) or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
need only comply with clause (civ) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets first paragraph of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable5.01(a).
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction Merge or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, convey lease or otherwise dispose of (whether in one transaction or cause in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to any Person, or permit any Restricted of its Material Subsidiaries (or any group of its Subsidiaries which taken as a whole would constitute a Material Subsidiary) to do so, except that any such Subsidiary may merge into or consolidate with or transfer assets to sellthe Borrower or any other such Subsidiary and the Borrower may merge with any other Person provided in each case that, immediately thereafter and giving effect thereto, no event shall have occurred and be continuing which constitutes a Default or an Event of Default and, in the case of any such merger or consolidation to which the Borrower is a party, the Borrower is the surviving corporation.
(b) Sell, assign, transfer, convey lease or otherwise dispose ofof (whether in one transaction or in a series of transactions) all or substantially all of the properties and assets of any line of business or other division of the Company Borrower or the Company and its Restricted Subsidiaries taken as Subsidiaries, including through a whole spin-off, reverse spin-off, split-off or similar transaction (determined on each, a consolidated basis for the Company and its Restricted Subsidiaries"Divestiture"), to except that the Borrower or any Person, unless:
(1) either:
(A) the Company shall be the surviving or continuing corporation; or
(B) the Person (if other than the Company) formed by Subsidiary may undertake any such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
Divestiture (i) will be an entity organized and validly existing under to the laws Borrower or to any wholly-owned Subsidiary of (x) the United States Borrower, as applicable, provided that, after the consummation of any such Divestiture, the Borrower shall not distribute any dividend to the shareholders of the Borrower payable in capital stock of such Subsidiary or any State thereof successor or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporationassignee Subsidiary to which such assets have subsequently been transferred except in compliance with Section 7.02(b)(ii), then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee)extent that, executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to any such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction)Divestiture, (A) the Company or aggregate book value of all assets that have been transferred in connection with any and all other Divestitures pursuant to this subsection (b) after the Closing Date does not exceed as of the date of any such Successor CompanyDivestiture 20% of Consolidated Total Assets, as based on the case may be, is able to Incur at least $1.00 of additional Indebtedness then-current financial statements delivered by the Borrower pursuant to Section 3.8(a6.01(a) or (b), and (B) the Consolidated Leverage Ratio aggregate book value of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall all assets that have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) the Company or the Successor Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition and, if required been transferred in connection with such transactionDivestiture does not exceed, the supplemental indenture, comply with this Indenture and that all conditions precedent in this Indenture relating to the transaction have been complied with. For purposes of this Section 4.1, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all as of the properties date of such Divestiture, 10% of Consolidated Total Assets, based on the then-current financial statements delivered by the Borrower pursuant to Section 6.01(a) or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby).
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Neither the Company will notnor the Issuer will, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1) either:
either (A) the Company, the Issuer or a Restricted Subsidiary of the Company shall be the surviving or continuing corporation; or
Person or (B) the Person (Person, if other than the Company) , the Issuer or a Restricted Subsidiary of the Company, formed by such consolidation or into which the Company or the Issuer is merged or the Person which that acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and all or substantially all of the Company’s assets determined on a consolidated basis for the Company and its Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
) (ix) will shall be an entity a Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes and Securities, this Indenture and the Registration Rights Agreement (as defined in Appendix A hereto) on the part of the Company or the Issuer, as applicable, to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), either (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness Indebtedness, other than Permitted Indebtedness, pursuant to Section 3.8(a) 4.04 or (B) the Consolidated Leverage Fixed Charge Coverage Ratio of for the Successor Company and its Restricted Subsidiaries or such Surviving Entity, as the case may be, immediately following such transaction would be less equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(B)(y) above (above, including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;; and
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of Company, the Successor Company in respect of this Indenture and the Notes; and
(5) the Company Issuer or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ Officer’s Certificate of the Issuer and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, shall comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction execution of such supplemental indenture have been complied withsatisfied. For purposes of this Section 4.1the foregoing, the transfer (transfer, by lease, assignment, sale or otherwise, in a single transaction or series of transactions) , of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, other than to a Wholly Owned Subsidiary that is a Guarantor, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) . Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries or the Issuer, as applicable, in accordance with this Section 4.1the foregoing, in which the Company or the Issuer, as applicable, is not the continuing corporationPerson, the Successor Company successor Person formed by such consolidation or into which the Company or the Issuer, as applicable, is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Issuer, as applicable, under this Indenture and the Notes Securities with the same effect as if such Successor Company Surviving Entity had been named as suchsuch and the Company or the Issuer, as applicable, shall be relieved of all of its obligations and duties under this Indenture and the Securities. For Each Guarantor (other than the avoidance Company), other than any Guarantor whose Guarantee is to be released in accordance with the terms of doubtthe Guarantee and this Indenture, compliance with this Section 4.1 will not, and the Company will not affect cause or permit any such Guarantor to, consolidate with or merge with or into any Person other than the Obligations Company, the Issuer or any other Guarantor unless:
(1) the entity formed by or surviving any such consolidation or merger, if other than such Guarantor, or to which such sale, lease, conveyance or other disposition shall have been made is a Person organized and existing under the laws of the United States or any State thereof or the District of Columbia;
(2) such entity assumes by supplemental indenture all of the obligations of such Guarantor under the Guarantee; and
(3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Any merger or consolidation of a Guarantor (other than the Company) with and into the Company or the Issuer, with the Company or the Issuer being the Surviving Entity, or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company (including a Successor Company, if applicable) under Section 3.21, if applicableneed not comply with this covenant.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Scientific Games Corp)
Merger, Consolidation and Sale of Assets. (a) The Company Borrower will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Borrower's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company Borrower and its the Borrower's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company Borrower shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the CompanyBorrower) formed by such consolidation or into which the Company Borrower is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company Borrower and of the Company’s Borrower's Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture an amended subordinated credit agreement (in form and substance reasonably satisfactory to the TrusteeAdministrative Agent), executed and delivered to the TrusteeAdministrative Agent, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Loans and any other Obligations hereunder and the performance and observance of every covenant of the Notes and in this Indenture Agreement on the part of the Company Borrower to be performed or observed;
; (2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3ii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted or anticipated to be granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
; (4iii) each Note Guarantor immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (including Persons that become Note Guarantors as a result of such transactioni)(2)(y) has confirmed by supplemental indenture that its Note Guarantee will apply above (including, without limitation, giving effect to the Obligations of the Successor Company any Indebtedness incurred or anticipated to be incurred and any Lien granted or anticipated to be granted in connection with or in respect of this Indenture the transaction), the Borrower would be able to incur $1.00 of additional Indebtedness under Section 6.01(xvii); and the Notes; and
(5iv) the Company Borrower or the Successor Company has Surviving Entity shall have delivered to the Trustee Administrative Agent an Officers’ Officer's Certificate and an Opinion opinion of Counselcounsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a subordinated amended credit agreement is required in connection with such transaction, the supplemental indenture, such amended credit agreement comply with the applicable provisions of this Indenture Agreement and that all conditions precedent in this Indenture Agreement relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Borrower the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Borrower, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased therebyBorrower.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries Borrower in accordance with this Section 4.1the foregoing, in which the Company Borrower is not the continuing corporation, the Successor Company successor Person formed by such consolidation or into which the Company Borrower is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company Borrower under this Indenture Agreement and the Notes Loans with the same effect as if such Successor Company surviving entity had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations When a successor assumes all of the Company (including a Successor Companyobligations of its predecessor under this Agreement, if applicable) under Section 3.21, if applicablethe predecessor shall be released from those obligations.
(d) Notwithstanding anything Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the contrary herein, neither terms of this Agreement or in connection with any transaction complying with the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all provisions of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.Section 6
Appears in 1 contract
Samples: Senior Subordinated Credit Agreement (Superior Telecom Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will LNR shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the properties and LNR's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company LNR and its Restricted Subsidiaries), to any Person, ) unless:
: (i) either (1) either:
(A) the Company LNR shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the CompanyLNR) formed by such consolidation or into which the Company LNR is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company LNR and of the Company’s Restricted its Subsidiaries substantially as an entirety (the “Successor Company”):
"SURVIVING ENTITY") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and the Registration Rights Agreement on the part of the Company LNR to be performed or observed;
, as the case may be; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company LNR or such Successor CompanySurviving Entity, as the case may be, is (1) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of LNR immediately prior to such transaction and (2) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than additional Permitted Indebtedness) pursuant to Section 3.8(a) or SECTION 4.12; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4iv) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) the Company LNR or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the CompanyLNR, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will LNR shall be deemed to be the transfer of all or substantially all of the properties and assets of the CompanyLNR.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (LNR Property Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not, and will not cause or permit the Issuers to, and the Issuers will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company or the Issuers, as applicable, is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Restricted Subsidiaries)) or the Issuers, as applicable, to any PersonPerson (each such event involving the Company, a "Company Merger or Sale Event," and each such event involving the Issuers, an "Issuer Merger or Sale Event") unless:
(a) either:
(1) either:
(A) except in the case of a consolidation or merger between the Company shall and the Issuers, the Company, in the case of Company Merger or Sale Event, or the Issuers, in the case of an Issuer Merger or Sale Event, will be the surviving or continuing corporation; Person, or
(B2) the Person (if other than the CompanyCompany or the Issuers, as applicable) formed by such consolidation or into which the Company or the Issuers, as applicable, is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and the Restricted Subsidiaries, or of the Company’s Restricted Subsidiaries Issuers, as the case may be, substantially as an entirety (the “Successor Company”"Surviving Entity"):
(i) will be an entity a corporation, partnership or limited liability company organized or, as the case may be, incorporated and validly existing under the laws of (x) the United States of America, any state thereof or the District of Columbia, Bermuda, Canada, Switzerland, Japan, any AAA Rated Country or any State European Union Country; provided, that, in the case of the Surviving Entity for Elan Finance Corp., only the United States of America, any state thereof or the District of Columbia shall be permitted jurisdictions of organization or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notesincorporation; and
(ii) will expressly assume, by supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment all obligations of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes and the performance and observance of every covenant of Issuers under the Notes and this Indenture on Indenture, in the part case of an Issuer Merger or Sale Event, or all obligations of the Company to be performed under the Elan Note Guarantee and this Indenture, in the case of a Company Merger or observedSale Event and all obligations of the Issuers or the Company, as applicable, under the Registration Rights Agreement;
(2b) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iia)(2)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction)) and the use of any net proceeds therefrom, (A) the Company (after an Issuer Merger or Sale Event or after a Company Merger or Sale Event if the Company is the surviving or continuing Person) or such Successor Company, as the case may be, is able to Incur at least Surviving Entity (after a Company Merger or Sale Event):
(1) could incur $1.00 of additional Indebtedness pursuant to paragraph (a) of Section 3.8(a3.8; or
(2) would have a Consolidated Net Fixed Charge Coverage Ratio equal to or (B) greater than the Consolidated Leverage Net Fixed Charge Coverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3c) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iia)(2)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and the use of any net proceeds therefrom and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall will have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5d) the Company Company, the Issuers or the Successor Surviving Entity, whichever entity is the surviving or continuing Person after a Company Merger or Sale Event or an Issuer Merger or Sale Event, has delivered to the Trustee an Officers’ Officer's Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with the applicable provisions of this Indenture and the Elan Note Guarantee (only with respect to a Company Merger or Sale Event) and that all conditions precedent in this Indenture relating to the such transaction have been complied withsatisfied. For purposes of this Section 4.1, the transfer (by sale, assignment, sale transfer, lease, conveyance or otherwise, in a single transaction or series of transactions) other disposition of all or substantially all of the properties or and assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its the Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
. Notwithstanding the foregoing clauses (b) The provisions of Sections 4.1(a)(2and (c) and 4.1(a)(5) above will not apply toabove:
(1) the Company or any transfer Restricted Subsidiary may merge or consolidate with or into, or sell, assign, transfer, lease, convey or otherwise dispose of the all or any part of its properties or assets of a Restricted Subsidiary to to, the Company Company, the Issuers or to another Restricted Subsidiary;; and
(2) subject to Section 10.3the Company and the Issuers may merge or consolidate with or into, any merger or transfer all of a Restricted Subsidiary into its properties and assets to, an Affiliate of the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of Issuers, as the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate case may be, incorporated or formed solely for the purpose of either reincorporating or reforming the Company or the Issuers, as the case may be, in another State of the United States or jurisdiction listed in another province or under the federal laws of Canada, clause (a)(2)(i) above so long as, in each case, as the amount of Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) . Upon any consolidation, combination Company Merger or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, Sale Event in which the Company is not the surviving or continuing corporationPerson, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made Surviving Entity will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Elan Note Guarantee with the same effect as if such Surviving Entity had been named as such. Upon any Issuer Merger or Sale Event in which none of the Issuers is the continuing Person, the Surviving Entity will succeed to, and be substituted for, and may exercise every right and power of, the Issuers under this Indenture and the Notes with the same effect as if such Successor Company Surviving Entity had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations obligations of the Company (including a Successor Company, if applicable) Issuers under Section 3.213.16, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Elan Corp PLC)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), basis) whether as an entirety or substantially as an entirety to any Person, unless:
: (i) either (1) either:
(A) the Company shall be the surviving corporation, partnership, trust or continuing corporation; or
limited liability company or (B2) the Person (if other than the Company) formed by or surviving any such consolidation or into merger or to which the Company is merged or the Person which acquires by such sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") shall have been made (ix) will shall be an entity a corporation, partnership, trust or limited liability company organized and validly existing under the laws of (x) the United States or States, any State state thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes Securities and this Indenture on the part of the Company to be performed or observed;
; and (2z) unless the Collateral has been released in accordance with the provisions of the Security Documents, shall expressly assume, by Security Documents specified by the Collateral Agent, executed and delivered to the Trustee, the due and punctual performance of every covenant and obligation under the Security Documents on the part of the Company to be performed or observed; (ii) immediately after giving effect to such transaction on a pro forma basis and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.4; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction on a pro forma basis and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred or repaid and any Lien granted or to be released in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the (x) such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that (y) all conditions precedent in this Indenture relating to the such transaction have been complied withsatisfied; and (v) unless the Collateral has been released in accordance with the provisions of the Security Documents, the Company or the Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that (x) any Security Documents to be executed and delivered comply with the applicable provisions of this Indenture and (y) all conditions precedent in this Indenture and the Security Documents relating to such transaction have been satisfied. Notwithstanding the foregoing, (i) the merger of the Company with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction shall be permitted so long as such Affiliate (x) shall comply with clauses (i)(2)(x), (y) and (z) of the preceding paragraph and (y) such Affiliate shall comply with clauses (iv) and (v) of the preceding paragraph and (ii) the merger of any Restricted Subsidiary of the Company into the Company or the transfer, lease, conveyance or other disposition of all or substantially all of the assets of a Restricted Subsidiary of the Company to the Company shall be permitted so long as the Company delivers to the Trustee an Officers' Certificate stating that the purpose of such merger, transfer, lease, conveyance or other disposition is not to consummate a transaction that would otherwise be prohibited by this Indenture.
(b) No Guarantor (other than any Guarantor whose Guarantee is to be released (x) in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Section 4.16 or (y) in accordance with the terms of the Credit Agreement and the Security Documents in the event of any sale, foreclosure, realization or other disposition of or on any Capital Stock issued by any Guarantor or otherwise as permitted under Section 14.3) shall, and the Company shall not cause or permit any Guarantor to, consolidate with or merge with or into any Person or sell, assign, transfer, lease, convey, or otherwise dispose of all or substantially all of its assets to any Person other than the Company or any other Guarantor unless: (i) the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation or limited liability company organized and existing under the laws of the United States, any state thereof or the District of Columbia; (ii) such entity assumes by supplemental indenture all of the Obligations of the Guarantor under its Guarantee and the Security Documents; (iii) immediately after giving effect to such transaction on a pro forma basis, no Default or Event of Default shall have occurred and be continuing; (iv) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the Company could satisfy the provisions of clause (ii) of the first paragraph of Section 5.1(a); and (v) the Company or the Surviving Entity, as the case may be, 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 is required in connection with such transaction, such supplemental indenture and Security Documents, if any, comply with the applicable provisions of this Indenture and (y) all conditions precedent in this Indenture and the Security Documents, if any, relating to such transaction have been satisfied. Any merger or consolidation of a Guarantor with and into the Company (with the Company being the Surviving Entity) or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company need only comply with clauses (iv) and (v) of the first paragraph of Section 5.1(a).
(c) For purposes of this Section 4.1the foregoing paragraph (a), the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Quality Distribution Inc)
Merger, Consolidation and Sale of Assets. (a) The Merge or consolidate with or sell, assign, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to any Person, or permit any of its Material Subsidiaries (or any group of the Restricted Subsidiaries which taken as a whole would constitute a Material Subsidiary) to do so, except that (i) any Borrower or any Restricted Subsidiary may consummate the BCD Divestiture and the CIS Divestiture, (ii) any such Restricted Subsidiary may merge into or consolidate with or transfer assets to the Company will notor (iii) any other such Restricted Subsidiary and any Borrower may merge with any other Person provided in each case that, immediately thereafter and giving effect thereto, no event shall have occurred and be continuing which constitutes a Default or an Event of Default and, in the case of any such merger or consolidation to which the Company is a single transaction or series of related transactionsparty, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sellcorporation.
(b) Sell, assign, transfer, convey lease or otherwise dispose of (whether in one transaction or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose ofin a series of transactions) all or substantially all of the properties and assets of any line of business or other division of any Borrower or any Restricted Subsidiary, including through a spin-off, reverse spin-off, split-off or similar transaction (each, a “Divestiture”), except that any Borrower or any Restricted Subsidiary may undertake (i) the BCD Divestiture, (ii) the CIS Divestiture, (iii) any transfer of assets to the Company or to any wholly-owned Restricted Subsidiary, as applicable, provided that, after the consummation of any such Divestiture, the Company shall not distribute any dividend to the shareholders of the Company payable in capital stock of such Restricted Subsidiary or the Company and its any successor or assignee Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted SubsidiariesSubsidiary to which such assets have subsequently been transferred except in compliance with Section 7.02(b)(iv), to and (iv) any Person, unless:
(1) either:
(A) the Company shall be the surviving or continuing corporation; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
(i) will be an entity organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory Divestiture to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observed;
(2) immediately extent that after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction)thereto, (A) the Company aggregate book value of all assets that have been transferred in connection with any and all other Divestitures pursuant to this clause (iv) after the Closing Date does not exceed as of the date of any such Divestiture 40% of Consolidated Total Assets as of the last day of the most recently ended fiscal quarter or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness fiscal year for which a Compliance Certificate has been delivered pursuant to Section 3.8(a) or 6.04 and (B) the Consolidated Leverage Ratio EBIT attributable to the stock or assets sold in all Divestitures pursuant to this clause (iv) after the Closing Date, measured for the last trailing four fiscal quarter period prior to consummation of each such Divestiture, does not exceed 20% of the Successor Company and its Restricted Subsidiaries would be less than such ratio Consolidated EBIT for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on most recently ended fiscal quarter for which a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) Compliance Certificate has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) the Company or the Successor Company has been delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with this Indenture and that all conditions precedent in this Indenture relating to the transaction have been complied with. For purposes of this Section 4.1, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject pursuant to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby6.04.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company Borrower will notnot ---------------------------------------- consolidate with, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person)into, or sell, assignconvey, transfer, convey lease or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the properties its property and assets (as an entirety or substantially an entirety in one transaction or a series of related transactions) to, any Person (other than a consolidation or merger with or into a wholly owned subsidiary with a positive net worth; provided that, in connection with any such merger or consolidation, no consideration (other than common stock in the Company surviving Person or Borrower) shall be issued or distributed to the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), shareholders of Borrower) or permit any Person to any Person, merge with or into Borrower unless:
(1i) either:
(A) the Company Borrower shall be the surviving continuing Person, or continuing corporation; or
(B) the Person (if other than the CompanyBorrower) formed by such consolidation or into which the Company Borrower is merged or the Person which acquires by sale, assignment, transfer, conveyance that acquired or other disposition the properties leased such property and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
(i) will Borrower shall be an entity a corporation organized and validly existing under the laws of (x) the United States of America or any State thereof or the District of Columbia or (y) Canada or any province or territory jurisdiction thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assumeimmediately after giving effect to such transaction, by supplemental indenture no Event of Default shall have occurred and be continuing; and (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observed;
(2iii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis basis, Borrower or any Person becoming the successor to any Indebtedness, including any Acquired Indebtedness, Incurred Borrower shall have a consolidated EBITDA equal to or anticipated to be Incurred in connection with or in respect greater than the consolidated EBITDA of such transaction), (A) the Company or such Successor Company, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries Borrower immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default . The foregoing limitation shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will not apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5A) the Company or the Successor Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, any sale, assignmentlease, transfer, conveyance or other disposition andof assets in the ordinary course of business, if required or (B) any sale, lease, or other disposition of assets in connection with such transaction, the supplemental indenture, comply with this Indenture and that all conditions precedent in this Indenture relating to the transaction have been complied with. For purposes of this Section 4.1, the transfer an aggregate amount not exceeding ten percent (by assignment, sale or otherwise, in a single transaction or series of transactions10%) of all or substantially all of the properties or total assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (Borrower determined on a consolidated fair market value basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, as Borrower receives fair and reasonable consideration for such assets as determined in each case, the Indebtedness good faith by Borrower's board of the Company and its Restricted Subsidiaries taken as a whole is not increased therebydirectors.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Subordinated Convertible Term Loan Agreement (Tci Satellite Entertainment Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will Issuer may not, in a single transaction directly or series of related transactionsindirectly, consolidate or merge with or into any Person (whether or not the Company Issuer is the surviving or continuing Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the its properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries)assets, in one or more related transactions, to any another Person, unless:
(1) either:
(Ai) the Company shall be Issuer is the surviving corporation or continuing corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer ) formed by or to which such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
(i) will be an entity shall have been made is a corporation organized and validly or existing under the laws of (x) the United States or States, any State state thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the NotesColumbia; and
(ii) will expressly assumethe Person formed by or surviving any such consolidation or merger (if other than the Issuer) or the Person to which such sale, by supplemental indenture (in form reasonably satisfactory to assignment, transfer, conveyance or other disposition shall have been made assumes all the Trustee), executed and delivered to the Trustee, the due and punctual payment Obligations of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observed;Issuer; and
(2iii) no Default shall exist or shall occur immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred such transaction; and
(iv) except in connection the case of a merger of the Issuer with or in respect into a Wholly Owned Restricted Subsidiary of the Issuer, the Issuer or the Person formed by or surviving any such transactionconsolidation or merger (if other than the Issuer), (A) or to which such sale, assignment, transfer, conveyance or other disposition shall have been made will immediately after such transaction and after giving pro forma effect thereto and any related financing transactions as if the Company or such Successor Companysame had occurred at the beginning of the applicable period, as the case may be, is able be permitted to Incur incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;8.04(a)(i); and
(3v) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (includingif, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) the Company or the Successor Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition and, if required in connection with any such transaction, the supplemental indenture, comply with this Indenture and that all conditions precedent in this Indenture relating to the transaction have been complied with. For purposes of this Section 4.1, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties property or assets of one or more Restricted Subsidiaries the Issuer would become subject to a Lien subject to the provisions of the Companythis Agreement described under Section 8.08, the Capital Stock of which constitutes all Issuer or substantially all of the properties and assets of successor entity to the Company (determined on a consolidated basis for Issuer shall have secured the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the CompanyNotes as required by said Section.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above this Section 8.10 will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary be applicable to the Company Reorganization in accordance with Section 2.05 or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for transaction the purpose of holding which is to reincorporate the Capital Stock of the Company; or
Issuer (4or its successor or assign) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased therebyU.S. jurisdiction.
(c) Upon any consolidation, combination consolidation or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries Issuer in accordance with this Section 4.1, in which the Company is not the continuing corporation8.10(a) hereof, the Successor Company successor Person formed by such consolidation or into which the Company Issuer is merged or to which such conveyance, lease or transfer is made will shall succeed to, to and (except in the case of a lease) be substituted forfor (so that from and after the date of such consolidation, merger or transfer, the provisions of this Agreement referring to the "Issuer" shall refer instead to the successor Person and not to the prior issuer), and may exercise every right and power of, the Company Issuer under this Indenture and the Notes Agreement with the same effect as if such Successor Company successor Person had been named herein as such. For the avoidance issuer, and (except in the case of doubt, compliance with this Section 4.1 will not affect a lease) the Obligations of prior issuer shall be released from the Company (including a Successor Company, if applicable) under Section 3.21, if applicableObligations.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Purchase Agreement (Intira Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the Company’s properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, Person unless:
(1a) either:
(A1) the Company shall be the surviving or continuing corporation; , or
(B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
(iA) will shall be an entity organized or incorporated, as applicable, and validly existing under the laws of (xi) the Grand Duchy of Luxembourg, (ii) the United States or of America, any State thereof or the District of Columbia Columbia, (iii) the Federative Republic of Brazil, (iv) the British Virgin Islands, (v) Panama or (yvi) Canada or any province or territory thereof; provided that if the Successor Company country which is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer member country of the Notes; Organization for Economic Co-Operation and Development, and
(iiB) will shall expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part obligations of the Company to be performed or observedunder this Indenture and the Securities;
(2b) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iia)(2)(B) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is will be able to Incur at least $1.00 U.S.$1.00 of additional Indebtedness pursuant to Section 3.8(a4.09(a) or hereof; provided that this clause (Bb) the Consolidated Leverage Ratio shall not be applicable with respect to any transaction involving a Change of Control where no Change of Control Offer is required to be made because such transaction does not trigger clause (iv) of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transactiondefinition of a Rating Event;
(3c) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iia)(2)(B) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5d) the Company or the Successor Company Surviving Entity has delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction have been complied withsatisfied. For purposes A Subsidiary Guarantor (other than a Subsidiary Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee and this Section 4.1, the transfer (by assignment, sale or otherwiseIndenture) will not, in a single transaction or series of related transactions) of all , consolidate or substantially all of merge with or into any Person (whether or not such Subsidiary Guarantor is the properties surviving or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiariescontinuing Person), will be deemed to be the transfer or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of the Company.
such Subsidiary Guarantor (b) The provisions of Sections 4.1(a)(2) determined on a consolidated basis for such Subsidiary Guarantor and 4.1(a)(5) above will not apply toits Restricted Subsidiaries), to any Person unless:
(1) either:
(A) the Person acquiring the property in any transfer such sale or disposition or the Person formed by or surviving any such consolidation or merger (if other than a Subsidiary Guarantor) shall expressly assume all of the obligations of such Subsidiary Guarantor under its Note Guarantee, or
(B) the Net Cash Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of the Indenture; and
(2) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(A) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any 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 or be continuing. The provisions of this Section 5.01 will not apply to any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of properties or assets and assets, of a any Restricted Subsidiary to the Company or any Subsidiary Guarantor or any consolidation or merger among Subsidiary Guarantors. The provisions of clauses (b) and (c) above will not apply to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Wholly-owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Arazi S.a r.l.)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person or consummate a Delaware LLC Division (whether or not the Company is the surviving Person or continuing Personsuccessor, as applicable), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1i) either:
either (A) the Company shall be the surviving or continuing corporation; or
corporation or (B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or divided or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
) (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture to this Indenture and by joinder to the Note Security Documents to which the Company is a party (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture and the Note Security Documents on the part of the Company to be performed or observed;
(2ii) immediately after giving effect to such transaction on a pro forma basis and the assumption contemplated by clause (1)(B)(iiSection 501(a)(i)(B)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), either (Ax) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) 407 or (By) the pro forma Consolidated Leverage Fixed Charge Coverage Ratio of for the Successor Company or such Surviving Entity and its Restricted Subsidiaries would be less equal to or greater than such ratio the Consolidated Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries immediately prior prior, and without giving pro forma effect, to such transaction; provided, however, that this clause shall not be effective during any Suspension Period as described under Section 416;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iiSection 501(a)(i)(B)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted or to be released in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture and joinder to the Note Security Documents are required in connection with such transaction, the such supplemental indenture, indenture and joinder comply with the applicable provisions of this Indenture and the Note Security Documents and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied; For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries, which properties and assets, if held by the Company instead of such Restricted Subsidiaries of the Company, the Capital Stock of which constitutes would constitute all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
Company on a consolidated basis. Notwithstanding the foregoing clauses (b) The provisions of Sections 4.1(a)(2ii) and 4.1(a)(5(iii) above will not apply to:
of Section 501(a), (1) any transfer of the properties or assets of a Restricted Subsidiary may consolidate with or merge with or into or wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company; (2) the Company or any Guarantor 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 Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
Guarantor; (3) any merger the Company may consolidate with or merge with or into or wind up into an Affiliate of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating or reorganizing the Company in another State a state of the United States or in another province or under the federal laws District of Canada, Columbia so long as, in each case, as (i) the amount of Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
thereby and (cii) Upon any consolidation, combination or merger the Surviving Entity complies with subclauses (x) and (y) of Section 501(a)(i); (4) to the Company or any transfer of all its Subsidiaries may be converted into, or substantially all reorganized or reconstituted as a limited liability company, limited partnership or corporation in a state of the properties United States or the District of Columbia; and assets of (5) the Company and or a Guarantor may change its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicablename.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Tenneco Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or a series of related transactions, consolidate with or merge with or into any Person (whether or not the Company is the surviving or continuing Person)into, or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the properties and its assets to, another Person or Persons or adopt a Plan of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, Liquidation unless:
(1i) either:
either (A) the Company shall be the surviving survivor of such merger or continuing corporation; or
consolidation or (B) the surviving Person (if other than the Company) formed by such consolidation is a corporation, partnership or into which the Company is merged or the Person which acquires by sale, assignment, transfer, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
(i) will be an entity trust organized and validly existing under the laws of (x) the United States or States, any State state thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if and such surviving Person shall expressly assume all the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer obligations of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts), if any, and interest on all of the Notes and the performance and observance of every covenant of Company under the Notes and this Indenture on the part of the Company to be performed or observedIndenture;
(2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtednessbasis, including any Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be, surviving Person is able to Incur incur at least $1.00 of additional Indebtedness pursuant to (other than Permitted Indebtedness) in compliance with Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction4.12;
(3iii) 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
(iv) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred and any Lien granted incurred in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;.
(4b) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) the Company or the Successor Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with this Indenture and that all conditions precedent in this Indenture relating to the transaction have been complied with. For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or and assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
. Notwithstanding the foregoing clauses (b) The provisions of Sections 4.1(a)(2ii) and 4.1(a)(5) above will not apply to:
(1iv), (a) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose may consolidate with, merge into or transfer all or part of holding the Capital Stock of the Company; or
(4) a merger between its properties and assets to the Company and a newly-created (b) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased therebyjurisdiction.
(c) Upon any consolidationSubject to Section 11.02 hereof governing the release of a Guarantee, combination each Guarantor will not, in a single transaction or merger a series of related transactions, consolidate with or any transfer merge with or into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its assets to, another Person or Persons or adopt a Plan of Liquidation unless:
(i) either (A) such Guarantor shall be the properties survivor of such merger or consolidation or (B) the surviving Person is a corporation, partnership or trust organized 50 and assets existing under the laws of the Company United States, any state thereof or the District of Columbia and such surviving Person shall expressly assume all the obligations of the Guarantor under its Guarantee and the Indenture (such Guarantor or such Person, as the case may be, being herein call the "SUCCESSOR GUARANTOR");
(ii) the Successor Guarantor (if other than such Guarantor) expressly assumes all the obligations of such Guarantor under the Indenture and its Restricted Guarantee pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; and
(iii) immediately before and immediately after giving effect to such transaction (including any Indebtedness incurred or anticipated to be incurred by the Successor Guarantor or any of its Subsidiaries in accordance connection with this Section 4.1the transaction), in which the Company is not the continuing corporation, the Successor Company formed by such consolidation no Default or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, Event of Default shall have occurred and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicablecontinuing.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Dade Behring Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company’s properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, Person unless:
(1i) either:
(A) the Company shall be the surviving or continuing corporation; , or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
(i1) will be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporationCayman Islands, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii2) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observed, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes, and the Notes and this Indenture will remain in full force and effect;
(2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iia)(i)(B)(2) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor Company, as the case may be:
(A) will have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction, is and
(B) will be able to Incur at least $US$1.00 of additional Indebtedness pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction);
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iia)(i)(B)(2) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
(4iv) each Note Subsidiary Guarantor (including Persons that become Note Subsidiary Guarantors as a result of the transaction), unless such transaction) Subsidiary Guarantor is the Person with which the Company has entered into a transaction described under this Section 4.1, has confirmed by supplemental indenture that its Note Subsidiary Guarantee will apply to for the Obligations of the Company or the Successor Company in respect of this Indenture and the Notes; and
(5v) the Company or the Successor Company has delivered to the Trustee an Officers’ Certificate (attaching the arithmetic computations to demonstrate compliance with clause (ii) above) and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction have been complied withsatisfied. For purposes of this Section 4.14.1(a), the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) . Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.14.1(a), in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 4.1(a) will not affect the Obligations obligations of the Company (including a Successor Company, if applicable) under Section 3.213.25, if applicable.
(db) Notwithstanding anything to the contrary hereinEach Subsidiary Guarantor will not, neither and the Company nor the Company and its Restricted Subsidiaries taken as a whole maywill not cause or permit any Subsidiary Guarantor to, directly consolidate with or indirectlymerge into, lease or sell or dispose of all or substantially all of its assets to (determined on a consolidated basis), any Person (other than the Company) that is not a Subsidiary Guarantor unless no Default or their respective properties Event of Default shall have occurred and be continuing and:
(i) such Subsidiary Guarantor shall be the surviving or assets considered as one enterprisecontinuing Person, or the Person (if other than such Subsidiary Guarantor) will be the Company, another Subsidiary Guarantor or will assume all of the obligations of such Subsidiary Guarantor in one respect of its Subsidiary Guarantee by executing a supplemental indenture and providing the Trustee with an Officers’ Certificate and Opinion of Counsel, each stating that the consolidation, merger, sale or more related transactionsother disposition and the supplemental indenture, comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction have been satisfied, and such transaction is otherwise in compliance with this Indenture;
(ii) immediately after giving effect to such transaction and the assumption contemplated by clause (i) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), the Company or such Successor Company, as the case may be:
(A) will have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction, and
(B) will be able to Incur at least US$1.00 of additional Indebtedness pursuant to Section 3.8(a); and
(iii) the Company shall have delivered to the Trustee an Officers’ Certificate (attaching the arithmetic computations to demonstrate compliance with clause (ii) above) and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, lease, conveyance or other Persondisposition and, if required in connection with such transaction, the supplemental indenture, comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction have been satisfied; provided that this clause (b) shall not apply to any (A) sale or other disposition of substantially all of such Subsidiary Guarantor’s assets made in accordance with Section 3.11 or (B) any Subsidiary Guarantor whose Subsidiary Guarantee is to be unconditionally released as provided under Section 10.2. The foregoing requirements shall not apply to a consolidation or merger of any Subsidiary Guarantor with and into the Company or any other Subsidiary Guarantor, so long as the Company or such Subsidiary Guarantor survives such consolidation or merger.
Appears in 1 contract
Samples: Indenture (LDK Solar Co., Ltd.)
Merger, Consolidation and Sale of Assets. (a) The ---------------------------------------- Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company's and its Restricted Subsidiaries' properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), ) to any Person, Person unless:
(i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
entity or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
(2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) 3.9 or (B) the ----------- Consolidated Leverage Fixed Charge Coverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries or such Surviving Entity, as the case may be, would be greater than the Consolidated Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
(4iv) each Note Guarantor (including Persons that which become Note Guarantors as a result of such the transaction) has shall have confirmed by supplemental indenture Supplemental Indenture that its Note Guarantee will shall apply to the for such Person's Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5v) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied withsatisfied. For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) . The provisions of Sections 4.1(a)(2) and 4.1(a)(5clause (ii) above will shall not apply to:
to (1x) any transfer of the properties or assets of a Restricted Subsidiary of the Company to the Company or to another a Wholly Owned Restricted Subsidiary;
, (2y) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3z) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Subsidiary. Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1the foregoing, in which the Company is not the continuing corporation, the Successor Company successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company hereunder and under this Indenture and the Notes with the same effect as if such Successor Company surviving entity had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(db) Notwithstanding anything Each Note Guarantor (other than any Note Guarantor whose Note Guarantee is to be released in accordance with Section 11.2 will not, and the contrary herein------------ Company will not cause or permit any Note Guarantor to, neither consolidate with or merge into any Person that is not a Note Guarantor unless such Person (if such Person is the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially surviving entity) assumes by supplemental indenture all of the obligations of such Note Guarantor in respect of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other PersonNote Guarantee.
Appears in 1 contract
Samples: Indenture (BGF Industries Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for -70- the Company and its the Company's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing ---------------- under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes Securities and this Indenture on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction on a pro --- forma basis and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including ----- giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.04; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction on a pro forma basis and the assumption --- ----- contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied withsatisfied. Notwithstanding clause (ii) and (iii) above, the merger of the Company with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction shall be permitted.
(b) No Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Section 4.16) shall, and the 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 unless: (i) the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) or to which such sale, lease, conveyance or other disposition shall have been made is a corporation organized and existing under the laws of the United States or any State thereof or the District of Columbia; (ii) such entity assumes by supplemental indenture all of the Obligations of the Guarantor under the Guarantee; (iii) immediately after giving effect to such transaction on a pro forma basis, no Default or Event of --- ----- Default shall have occurred and be continuing; (iv) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro --- forma basis, the Company could satisfy the provisions of clause (ii) of Section ----- 5.01(a); and(v) the Company or the Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied. Any merger or consolidation of a Guarantor with and into the Company (with the Company being the Surviving Entity) or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company need only comply with clause (iv) of Section 5.01(a).
(c) For purposes of this Section 4.1the foregoing paragraph (a), the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (MTL Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company’s Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, unlessunless at the time of and after giving effect thereto:
(1) . either:
(Aa) the Company shall be the surviving or continuing corporation; or
(Bb) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
) (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or States, any State state thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes Notes, this Indenture, and this Indenture the Registration Rights Agreement on the part of the Company or such Restricted Subsidiary to be performed or observed;
(2) . immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(b)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (i) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (ii) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a4.12; provided, however, that this clause (2) or (B) shall not apply during the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transactionSuspension Period;
(3) . immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(b)(y) above (including, without limitation, limitation giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) 4. the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a sup supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied withsatisfied; provided, however, that the foregoing restrictions shall not apply to (i) any consolidation or merger of a Restricted Subsidiary of the Company with or into (or sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties, assets or Capital Stock of a Restricted Subsidiary to) the Company or another Restricted Subsidiary of the Company which is a Guarantor or (ii) any consolidation or merger of the Company and an Affiliate of the Company that has no material assets or liabilities and which was organized solely for the purpose of reorganizing the Company in another jurisdiction. For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2Section 4.15) will not, and 4.1(a)(5) above the Company will not apply cause or permit any Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Section 4.15) to, consolidate with or merge with or into any Person other than the Company or any other Guarantor unless:
(1) the entity formed by or surviving any transfer of the properties such consolidation or assets of a Restricted Subsidiary to merger (if other than the Company or the Guarantor) or to another Restricted Subsidiarywhich such sale, lease, conveyance or other disposition shall have been made is a corporation organized and existing under the laws of the United States, any state thereof or the District of Columbia;
(2) subject to Section 10.3, any merger such entity assumes by supplemental indenture all of a Restricted Subsidiary into the Company or another Restricted Subsidiaryobligations of the Guarantor on the Guarantee;
(3) any merger immediately after giving effect to such transaction, no Default or Event of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the CompanyDefault shall have occurred and be continuing; orand
(4) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power ofpro forma basis, the Company under could satisfy the provisions of clause (2) of the first paragraph of this Indenture Section 5.01. In the event of an occurrence of any of the events described in this Section 5.01, the Company will inform the Luxembourg Stock Exchange of the occurrence of such event. If and for so long as the Notes are listed on the Luxembourg Stock Exchange and the Notes with rules of such exchange so require, the same effect as if such Successor Company had been named as such. For will publish notice of the avoidance occurrence of doubt, compliance with any of the events described in this Section 4.1 will not affect 5.01 in Luxembourg in a daily newspaper with general circulation in Luxembourg (which is expected to be the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicableLuxembourger Wort).
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Standard Commercial Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not, Nothing contained in a single transaction this Indenture or series in any of related transactions, consolidate the Securities shall prevent any consolidation or merge merger of the Issuer or the Parent Guarantor with or into any other Person or Persons (whether or not affiliated with the Company is Issuer or the surviving or continuing PersonParent Guarantor, as applicable), or sellsuccessive consolidations or mergers in which the Issuer or the Parent Guarantor, assignor their successor or successors, transfershall be a party or parties, convey or otherwise dispose of (shall prevent any conveyance or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all transfer of the properties and assets of the Company Issuer or the Company and its Restricted Subsidiaries taken Parent Guarantor as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, unless:
(1) either:
(A) the Company shall be the surviving an entirety or continuing corporation; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety to any other Person (whether or not affiliated with the “Successor Company”):
Issuer or the Parent Guarantor, as applicable) lawfully entitled to acquire the same; provided, however, and the Issuer and the Parent Guarantor, as applicable, each hereby covenants and agrees, that upon any such consolidation, merger, conveyance or transfer, (i) will be an entity organized and validly existing under the laws of (x) in the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer case of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee), executed and delivered to the TrusteeIssuer, the due and punctual payment of the principal of, of and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture to be performed by the Issuer, or (y) in the case of the Parent Guarantor, the performance of the Guarantee and the performance and observance of every covenant all the covenants and conditions of the Notes and this Indenture on the part of the Company to be performed by the Parent Guarantor, shall, in either case, be expressly assumed, by indenture supplemental hereto, in form reasonably satisfactory to the Trustee, executed and delivered to the Trustee by the Person (if other than the Issuer or observed;
(2the Parent Guarantor, as the case may be) immediately after giving effect to formed by such transaction and consolidation, or into which the assumption contemplated by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred Issuer or anticipated to be Incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanyParent Guarantor, as the case may be, is able to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) shall have been merged, or by the Person which shall have acquired such properties and assets, and (Bii) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) the Company Issuer or the Successor Company has delivered Parent Guarantor, as the case may be, shall deliver to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, conveyance or other disposition and, if required in connection with transfer and such transaction, the supplemental indenture, indenture comply with this Indenture Section 6.04 and that all conditions precedent in this Indenture herein provided for relating to the such transaction have been complied with. For purposes of this Section 4.1with and that it constitutes the legal, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all valid and binding obligation of the properties or assets of one or more Restricted Subsidiaries successor, subject to customary exceptions.
(b) Upon any consolidation of the CompanyIssuer or the Parent Guarantor with, or merger of the Capital Stock of which constitutes all Issuer or substantially all the Parent Guarantor into, any other Person or any conveyance or transfer of the properties and assets of the Company (determined on a consolidated basis for Issuer or the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all Parent Guarantor as an entirety or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries an entirety in accordance with this Section 4.1, in which the Company is not the continuing corporation(a) above, the Successor Company successor Person formed by such consolidation or into which the Company Issuer or the Parent Guarantor is merged or to which such conveyance, lease conveyance or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company Issuer or the Parent Guarantor, as the case may be, under this Indenture and the Notes with the same effect as if such Successor Company successor Person had been named as such. For the avoidance of doubtIssuer or the Parent Guarantor, compliance with this Section 4.1 will not affect as the Obligations of the Company (including a Successor Companycase may be, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither and thereafter the Company nor predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other PersonSecurities.
Appears in 1 contract
Samples: Indenture (Pfizer Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, amalgamate, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company’s Restricted Subsidiaries), whether as an entirety or substantially as an entirety, to any Person, Person unless:
(1) either:
(A) the Company shall be the surviving or continuing corporation; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is amalgamated, merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
(i) will shall be an entity organized and or validly existing under the laws of Canada (x) or any province thereof), laws of the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereofColumbia; provided that if in the Successor Company case where the Surviving Entity is not a corporation, then a co-obligor of the Notes is a corporation wholly owned by such Person shall be an entity organized and or validly existing under the laws of Canada (x) or any province thereof), laws of the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the NotesColumbia; and
(ii) will shall expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iiSection 5.01(a)(1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (a) would be able to Incur incur at least $1.00 of additional Indebtedness pursuant to the Section 3.8(a4.09(a) or (Bb) the Consolidated Leverage Fixed Charge Coverage Ratio of the Successor Company and its Restricted Subsidiaries would not be less lower than such ratio for the Company and its Restricted Subsidiaries it was immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iiSection 5.01(a)(1)(B)(ii) above above, if applicable (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(54) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the such amalgamation, consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied withsatisfied. For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any amalgamation, consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.15.01(a), in which the Company is not the continuing corporation, the Successor Company successor Person formed by such consolidation or into which the Company is amalgamated or merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company surviving entity had been named as such. For the avoidance of doubt, compliance with such and all financial information and reports required by this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicableIndenture shall be provided by and for such surviving entity.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the Company’s properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for (other than (i) sales, assignments, transfers, leases, conveyances or other dispositions of Securitization Assets, Repurchase Agreement Assets, Investments or other securities or assets, in each case in the Company ordinary course of business and its Restricted Subsidiaries), (ii) any Required Asset Sale) to any Person, unless:
(1) either:
(A) the Company shall be the surviving or continuing corporationPerson; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and all or substantially all of the Company’s Restricted Subsidiaries substantially as an entirety properties and assets (the “Successor CompanySurviving Entity”):
(i) will shall be an entity organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the NotesColumbia; and
(ii) will shall expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee)indenture, executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of in the Notes and this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and and, if applicable, the assumption contemplated by clause (1)(B)(iiSection 5.01(a)(1)(B)(ii) above (including giving effect on a pro forma basis effect to any IndebtednessIndebtedness and Acquired Indebtedness incurred and any repayment, including any Acquired Indebtednessrepurchase, Incurred defeasance, redemption or anticipated to be Incurred in connection with or in respect other discharge of such transaction), (A) Indebtedness by the Company or such Successor Companythe Surviving Entity, as the case may be, is or any of their respective Subsidiaries in connection with such transaction), the Company or such Surviving Entity, as the case may be: (a) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction, in each case determined as of the end of the most recent fiscal quarter ending on or prior to the date of such transaction for which financial statements of the Company or the Surviving Entity, as the case may be, are available; or (b) shall be able to Incur incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) 4.07(b); or (Bc) shall have a Consolidated Fixed Charge Coverage Ratio that is equal to or greater than the Consolidated Leverage Fixed Charge Coverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transactiontransaction (the computations required by clauses (b) and (c) above shall be computed on a pro forma basis giving effect to such transaction as if it had occurred at the beginning of the most recent Four Quarter Period ended on or prior to the date of such transaction for which financial statements of the Company or the Surviving Entity, as the case may be, are available and the other pro forma adjustments set forth in the definition of “Consolidated Fixed Charge Coverage Ratio”). If the transaction involves a Surviving Entity and the Company and the Surviving Entity have different fiscal quarters, then the relevant Four Quarter Period and, for purposes of clause (a) of this paragraph (2), the relevant fiscal quarter, may, at the election of the Company, be based on either the Company’s or the Surviving Entity’s fiscal quarters;
(3) immediately before and immediately after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation of the assumption contemplated Company or the Surviving Entity, as the case may be, or any of its Subsidiaries as a result of such transaction as having been incurred by clause (1)(B)(ii) above (includingthe Company or the Surviving Entity, without limitationas the case may be, giving effect on a pro forma basis to or such Subsidiary at the time of such transaction, and any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated Indebtedness to be Incurred and repaid, repurchased, defeased, redeemed or otherwise discharged by the Company or the Surviving Entity or any Lien granted of their respective Subsidiaries in connection with such transaction as having been repaid, repurchased, defeased, redeemed or in respect otherwise discharged at the time of such transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) if the Surviving Entity is not the Company, each Note Guarantor (including Persons that become Note Guarantors as a result of such transactionunless it is the Surviving Entity, in which case Section 5.01(a)(1)(B) has confirmed above shall apply) shall have by supplemental indenture confirmed that its Note Guarantee will of the Notes shall apply to the Obligations of the Successor Company in respect of such Surviving Entity’s obligations under this Indenture and the Notes; and
(5) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of CounselCounsel (which Opinion of Counsel may be subject to customary assumptions, limitations and exceptions), each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture Indenture.
(b) Notwithstanding the provisions of Section 5.01(a), any Subsidiary of the Company may merge or consolidate with or into or transfer all or any part of its properties and that all conditions precedent in this Indenture relating assets to the transaction have been complied with. Company or the Surviving Entity or any other Subsidiary of the Company or the Surviving Entity and Section 5.01(a) and, except in the case of a merger or consolidation with or into the Company or the Surviving Entity, Section 5.01(f), shall not apply to any such transaction.
(c) For purposes of this Section 4.1the foregoing, the transfer (by sale, assignment, sale transfer, lease, conveyance or otherwiseother disposition, in a single transaction or series of related transactions) , of all or substantially all of the properties or and assets of one or more Restricted Subsidiaries of the CompanyCompany (other than (i) sales, assignments, transfers, leases, conveyances or other dispositions of Securitization Assets, Repurchase Agreement Assets, Investments or other securities or assets, in each case in the ordinary course of business and (ii) any Required Asset Sale), the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)basis, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bd) The provisions For purposes of Sections 4.1(a)(2) clarity, it is understood and 4.1(a)(5) above will not apply to:
agreed that references in this Section 5.01 to sales, assignments, transfers, leases, conveyances or other dispositions of Securitization Assets, Repurchase Agreement Assets, Investments or other securities or assets in the ordinary course of business shall include, without limitation, any sales, assignments, transfers, leases, conveyances or other dispositions of Securitization Assets, Repurchase Agreement Assets, Investments or other securities or assets (1) that are made (x) to any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created Securitization Entity for the purpose of holding enabling such Securitization Entity to securitize the Capital Stock assets so sold, assigned, transferred, leased, conveyed or disposed of or enabling such Securitization Entity to issue Non-Recourse Indebtedness secured by such assets or to enter into any Repurchase Agreements with respect to such assets or (y) to any Person pursuant to a Repurchase Agreement that is otherwise permitted (or not prohibited) by this Indenture, under which such Person is a buyer of Repurchase Agreement Assets, and (2) that the Company in good faith determines to be consistent with past practice of the Company or any of its Subsidiaries or to reflect customary or accepted practice in the businesses, industries or markets in which the Company or any of its Subsidiaries operates or reasonably expects to operate or that reflect reasonable extensions, evolutions or developments of any of the foregoing (including, without limitation, by way of new transactions or structures), and as a result, none of the foregoing shall constitute a sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the Company; or
(4) ’s properties and assets, on a merger between the Company and a newly-created Affiliate incorporated solely consolidated basis or otherwise, for the purpose of reincorporating the Company in another State purposes of the United States or in another province or under the federal laws other paragraphs of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased therebythis Section 5.01.
(ce) Upon any consolidation, combination consolidation or merger or any transfer sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties and or assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, the foregoing in which the Company is not the surviving or continuing corporationentity, as the case may be, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company Surviving Entity had been named as such. For the avoidance of doubt“Company” herein and therein, compliance with this Section 4.1 will not affect the Obligations of and the Company (including shall be released from all of its obligations under this Indenture and the Notes; provided that, in the case of a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease of all or substantially all of the properties and assets of the Company, the Company will not be released from its obligation to pay the principal of and premium, if any, and interest on the Notes.
(f) If the Surviving Entity in any transaction described in, and made in compliance with, this Section 5.01 shall be a Guarantor of the Notes, or their respective properties if a Guarantor shall merge or assets considered consolidate with or into the Company or the Surviving Entity, as one enterprisethe case may be, in one or more related transactionsany transaction described in, to any other Personand made in compliance with this Section 5.01, such Guarantor’s Guarantee of the Notes will automatically terminate and be released and such Guarantor will automatically be released from all of its obligations under its Guarantee of the Notes and all of its obligations as a Guarantor under this Indenture contemporaneously with such transaction.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will notIssuer shall not consolidate with or merge with or into, or convey, transfer or lease, in a single one transaction or a series of related transactions, consolidate directly or merge with or into any Person (whether or not the Company is the surviving or continuing Person)indirectly, or sell, assign, transfer, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the its properties and or assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries)to, to any Person, unless:
(1) either:
(Ai) the Company shall be the resulting, surviving or continuing corporation; or
(B) the transferee Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanyIssuer”):
(i) will shall be an entity a Person organized and validly existing under the laws of (x) the United States or of America, any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if and the Successor Company is Issuer (if not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (xIssuer) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by a supplemental indenture (in form reasonably satisfactory to the Trustee)hereto, executed and delivered to the Trustee, in form satisfactory to the due and punctual payment Trustee, all the obligations of the principal ofIssuer under the Notes, and premium (including any Additional Amounts), if any, and interest on all of the Notes this Indenture and the performance and observance of every covenant of the Notes and this Indenture on the part of the Company to be performed or observedRegistration Rights Agreement;
(2ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the assumption contemplated Successor Issuer or any Subsidiary thereof as a result of such transaction as having been Incurred by clause (1)(B)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred such Successor Issuer or anticipated to be Incurred in connection with or in respect such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, (A) the Company or such Successor Company, as the case may be, is Issuer would be able to Incur at least an additional $1.00 of additional Indebtedness pursuant to Section 3.8(a4.06(a) or (B) the Consolidated Leverage Coverage Ratio of the for such Successor Company and its Restricted Subsidiaries Issuer would be less no worse than such ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(3iv) immediately before and immediately after giving effect each Subsidiary Guarantor, unless it is the other party to the transactions described above, in which case clause (i) shall apply, shall have confirmed in writing that its Subsidiary Guarantee shall apply to such transaction and Person’s obligation under the assumption contemplated by clause (1)(B)(ii) above (includingNotes, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of such transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the NotesRegistration Rights Agreement; and
(5v) the Company or the Successor Company has Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, conveyance merger or other disposition and, transfer and such supplemental indenture (if required in connection with such transaction, the supplemental indenture, any) comply with this Indenture Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and that all conditions precedent in this Indenture relating assets to the transaction have been complied with. Issuer (so long as no Capital Stock of the Issuer is distributed to any Person) or (B) the Issuer merging with an Affiliate of the Issuer solely for the purpose and with the sole effect of reincorporating the Issuer in another jurisdiction.
(b) For purposes of this Section 4.15.01, the transfer (by sale, lease, conveyance, assignment, sale transfer or otherwise, in a single transaction or series of transactions) other disposition of all or substantially all of the properties and assets or assets of one or more Restricted Subsidiaries of the CompanyIssuer, which properties and assets, if held by the Capital Stock Issuer instead of which constitutes such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company (determined Issuer on a consolidated basis for the Company and its Restricted Subsidiaries)basis, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased therebyIssuer.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of The Successor Issuer shall be the properties successor to the Issuer and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will shall succeed to, and be substituted for, and may exercise every right and power of, the Company Issuer under this Indenture Indenture, and the Notes with predecessor Issuer, except in the same effect as if such Successor Company had been named as such. For case of a lease, shall be released from the avoidance obligation to pay the principal of doubt, compliance with this Section 4.1 will not affect and interest on the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicableNotes.
(d) Notwithstanding anything Subject to the contrary hereinprovisions described under Article X, neither the Company nor the Company and its Restricted Subsidiaries taken as no Subsidiary Guarantor shall consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a whole mayseries of transactions, directly or indirectly, lease all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the “Successor Guarantor”) shall be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Guarantor (if not such Subsidiary Guarantor) shall expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Subsidiary Guarantor under the Notes, the Indenture and the Registration Rights Agreement;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Guarantor as a result of such transaction as having been Incurred by such Successor Guarantor at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Subsidiary Guarantor shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with the Indenture Notwithstanding the foregoing (1) a Subsidiary Guarantor may merge with an Affiliate incorporated solely for the purpose of reincorporating such Guarantor in another state of the United States or the District of Columbia, so long as the amount of Indebtedness of the Subsidiary Guarantor is not increased thereby, and (2) any Subsidiary Guarantor may merge into or transfer all or part of its properties and assets to the Issuer or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Personanother Subsidiary Guarantor.
Appears in 1 contract
Samples: Indenture (Amsurg Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity ---------------- a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes Securities and this Indenture on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction on a pro forma basis and the assumption contemplated by --- ----- clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.04; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied withsatisfied. Notwithstanding the foregoing, the merger of the Company with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction shall be permitted.
(b) For purposes of this Section 4.1the foregoing paragraph (a), the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Alliance Imaging of Central Georgia Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related re- lated transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Com- pany's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (1) either:
: (Aa) the Company shall be the surviving or continuing corporation; or
or (Bb) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially sub- stantially as an entirety (the “Successor Company”):
"Surviving Entity"): (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or Columbia; and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture in- denture (in form reasonably and substance satisfactory to the TrusteeTrus- tee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this the Indenture on the part of the Company to be performed or observed;
; (2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(b)(y) above (including giving giv- ing effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
5.01; (3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii1)(b)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebted- ness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such transactionthe transac- tion), no Default or Event of Default shall have occurred or be continuing;
con- tinuing; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Certificate officer's certificate and an Opinion of Counsel, each stating to the effect that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemen- tal indenture is required in connection with such transaction, such supplemental indenture complies with the supplemental indenture, comply with this applicable provisions of the Indenture and that all conditions precedent in this the Indenture relating to the such transaction have been complied withsatisfied. For purposes of this Section 4.1the foregoing, the transfer (by assignmentlease, assign- ment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Re- stricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: First Supplemental Indenture (Hollywood Entertainment Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the Company’s properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for (other than sales, assignments, transfers, leases, conveyances or other dispositions of Securitization Assets, investments or other securities or assets, in each case in the Company and its Restricted Subsidiaries), ordinary course of business) to any Person, unless:
(1) either:
(A) the Company shall be the surviving or continuing corporationPerson; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and all or substantially all of the Company’s Restricted Subsidiaries substantially as an entirety properties and assets (the “Successor CompanySurviving Entity”):
(i) will shall be an entity organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the NotesColumbia; and
(ii) will shall expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee)indenture, executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of in the Notes and Notes, this Indenture and the Security Documents on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and and, if applicable, the assumption contemplated by clause (1)(B)(iiSection 5.01(a)(1)(B)(ii) above (including giving effect on a pro forma basis effect to any IndebtednessIndebtedness incurred or assumed and any repayment, including any Acquired Indebtednessrepurchase, Incurred defeasance, redemption or anticipated to be Incurred in connection with or in respect other discharge of such transaction), (A) Indebtedness by the Company or such Successor Companythe Surviving Entity, as the case may be, is or any of their respective Subsidiaries in connection with such transaction), the Company or such Surviving Entity, as the case may be: (a) shall be able to Incur incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(aclause (d) of the definition of “Incremental Cap” or (Bb) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be have a Tangible Net Worth immediately following such transaction that is no less than such ratio for the Company and its Restricted Subsidiaries Tangible Net Worth immediately prior to such transactiontransaction (the computations required by clauses (a) and (b) above shall be computed on a pro forma basis giving effect to such transaction as if it had occurred on the last day of the most recent Test Period ended on or prior to the date of such transaction for which financial statements of the Company or the Surviving Entity, as the case may be, are available and the other pro forma adjustments set forth in the definition of pro forma basis). If the transaction involves a Surviving Entity and the Company and the Surviving Entity have different fiscal quarters, then the relevant Test Period and, for purposes of clause (a) of this paragraph (2), the relevant fiscal quarter, may, at the election of the Company, be based on either the Company’s or the Surviving Entity’s fiscal quarters;
(3) immediately before and immediately after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation of the assumption contemplated Company or the Surviving Entity, as the case may be, or any of its Subsidiaries as a result of such transaction as having been incurred by clause (1)(B)(ii) above (includingthe Company or the Surviving Entity, without limitationas the case may be, giving effect on a pro forma basis to or such Subsidiary at the time of such transaction, and any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated Indebtedness to be Incurred and repaid, repurchased, defeased, redeemed or otherwise discharged by the Company or the Surviving Entity or any Lien granted of their respective Subsidiaries in connection with such transaction as having been repaid, repurchased, defeased, redeemed or in respect otherwise discharged at the time of such transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) if the Surviving Entity is not the Company, each Note Guarantor (including Persons that become Note Guarantors as a result of such transactionunless it is the Surviving Entity, in which case Section 5.01(a)(1)(B) has confirmed above shall apply) shall have by supplemental indenture confirmed that its Note Guarantee will of the Notes shall apply to the Obligations of the Successor Company in respect of such Surviving Entity’s obligations under this Indenture and the Notes; and
(5) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of CounselCounsel (which Opinion of Counsel may be subject to customary assumptions, limitations and exceptions), each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture.
(6) to the extent any assets of the Person which is merged, consolidated or amalgamated with or into the Surviving Entity are assets of the type which would constitute Collateral under the Security Documents, the Surviving Entity will 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 the Security Documents; and
(7) the Collateral owned by or transferred to the Surviving Entity shall: (a) continue to constitute Collateral under this Indenture and that all conditions precedent in this Indenture relating the Security Documents and (b) be subject to the transaction have been complied with. For purposes Lien in favor of this the Notes Collateral Agent for the benefit of the Trustee and the Holders of the Notes.
(b) Subject to Section 4.110.05, no Subsidiary Guarantor will, and the transfer (by assignment, sale or otherwiseCompany will not permit any Subsidiary Guarantor to, in a single transaction or series of related transactions, consolidate or merge with or into any Person, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of such Subsidiary Guarantor’s properties and assets determined on a consolidated basis (other than sales, assignments, transfers, leases, conveyances or other dispositions of Securitization Assets, investments or other securities or assets, in each case in the ordinary course of business) to any Person, unless:
(1) either
(A) the Subsidiary Guarantor shall be the surviving or continuing Person; or
(B) the Person (if other than the Subsidiary Guarantor) formed by such consolidation or into which such Subsidiary Guarantor is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition all or substantially all of such Subsidiary Guarantor’s properties and assets (the “Surviving Guarantor”):
(i) shall be an entity organized and validly existing under the laws of the United States or any State thereof or the District of Columbia; and
(ii) shall expressly assume, by supplemental indenture, executed and delivered to the Trustee, all the obligations of such Subsidiary Guarantor under this Indenture and the applicable Security Documents and such Subsidiary Guarantor’s related Guarantee pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation of the Subsidiary Guarantor or the Surviving Guarantor, as the case may be, or any of its Subsidiaries as a result of such transaction as having been incurred by the Subsidiary Guarantor or the Surviving Guarantor, as the case may be, or such Subsidiary at the time of such transaction, and any Indebtedness to be repaid, repurchased, defeased, redeemed or otherwise discharged by the Subsidiary Guarantor or the Surviving Guarantor or any of their respective Subsidiaries in connection with such transaction as having been repaid, repurchased, defeased, redeemed or otherwise discharged at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(3) the Company, the Subsidiary Guarantor or the Surviving Guarantor shall have delivered to the Trustee an Officers’ Certificate and an opinion of counsel (which opinion may be subject to customary assumptions, limitations and exceptions), each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of this Indenture;
(4) to the extent any assets of the Person which is merged, consolidated or amalgamated with or into the Surviving Guarantor are assets of the type which would constitute Collateral under the Security Documents, the Surviving Guarantor will 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 the Security Documents; and
(5) the Collateral owned by or transferred to the Surviving Guarantor shall: (a) continue to constitute Collateral under this Indenture and the Security Documents and (b) be subject to the Lien in favor of the Notes Collateral Agent for the benefit of the Trustee and the Holders of the Notes.
(c) For purposes of the foregoing, the sale, assignment, transfer, lease, conveyance or other disposition, in a single transaction or series of related transactions, of all or substantially all of the properties or and assets of one or more Restricted Subsidiaries of the CompanyCompany (other than sales, assignments, transfers, leases, conveyances or other dispositions of Securitization Assets, investments or other securities or assets, in each case in the ordinary course of business), the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)basis, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bd) The provisions For purposes of Sections 4.1(a)(2) clarity, it is understood and 4.1(a)(5) above will not apply to:
agreed that references in this Section 5.01 to sales, assignments, transfers, leases, conveyances or other dispositions of Securitization Assets, investments or other securities or assets in the ordinary course of business shall include, without limitation, any sales, assignments, transfers, leases, conveyances or other dispositions of Securitization Assets, investments or other securities or assets (1) that are made (x) to any transfer of the properties or assets of a Restricted Securitization Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding enabling such Securitization Subsidiary to securitize the Capital Stock assets so sold, assigned, transferred, leased, conveyed or disposed of or enabling such Securitization Subsidiary to issue Non-Recourse Indebtedness secured by such assets or to enter into any Repurchase Facility with respect to such assets or (y) to any Person pursuant to a Repurchase Facility that is otherwise permitted (or not prohibited) by this Indenture, under which such Person is a buyer of investments, and (2) that the Company in good faith determines to be consistent with past practice of the Company or any of its Subsidiaries or to reflect customary or accepted practice in the businesses, industries or markets in which the Company or any of its Subsidiaries operates or reasonably expects to operate or that reflect reasonable extensions, evolutions or developments of any of the foregoing (including, without limitation, by way of new transactions or structures), and as a result, none of the foregoing shall constitute a sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the Company; or
(4) ’s properties and assets, on a merger between the Company and a newly-created Affiliate incorporated solely consolidated basis or otherwise, for the purpose of reincorporating the Company in another State purposes of the United States or in another province or under the federal laws other paragraphs of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased therebythis Section 5.01.
(ce) Upon any consolidation, combination consolidation or merger or any transfer sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties and or assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, the foregoing in which the Company is not the surviving or continuing corporationentity, as the case may be, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company Surviving Entity had been named as such. For the avoidance of doubt“Company” herein and therein, compliance with this Section 4.1 will not affect the Obligations of and the Company (including shall be released from all of its obligations under this Indenture and the Notes; provided that, in the case of a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease of all or substantially all of the properties and assets of the Company, the Company will not be released from its or their respective properties or assets considered as one enterpriseobligation to pay the principal of and premium, in one or more related transactionsif any, to any other Personand interest on the Notes.
Appears in 1 contract
Samples: Indenture (Apollo Commercial Real Estate Finance, Inc.)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company’s assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company’s Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
(1i) either:
(A) the Company shall be the surviving or continuing corporation; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor CompanySurviving Entity”):
) (i1) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or Columbia, and (y2) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture joinder or other documents or instruments (in each case, in form reasonably and substance satisfactory to the TrusteePurchaser), executed and delivered to the TrusteePurchaser, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture Agreement on the part of the Company to be performed or observed, and all obligations of the Company under the Security Documents and Intercreditor Agreement;
(2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(B)(2) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Indebtedness permitted to be incurred under Section 4.03(b)) pursuant to Section 3.8(a) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction4.03;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(B)(2) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee Purchaser an Officers’ Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture or other documents or instruments are required in connection with such transaction, the such supplemental indenture, documents or instruments, as applicable, have been duly authorized, executed and delivered are legal, valid and binding agreements enforceable against the Surviving Entity, comply with the applicable provisions of this Indenture Agreement and that all conditions precedent in this Indenture Agreement relating to the such transaction have been complied withsatisfied;
(v) to the extent any assets of the Person which is consolidated with or merged with or into the Surviving Entity are assets of the type which would constitute Collateral under the Security Documents, 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 Agreement 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 Agreement and the Security Documents; and
(vi) the Collateral owned by or transferred to the Surviving Entity shall: (A) continue to constitute Collateral under this Agreement and the Security Documents, (B) be subject to the Lien in favor of the Notes Collateral Agent for the benefit of the Purchaser, the Trustee and the Securities Holders and (C) not be subject to any Lien other than Permitted Collateral Liens or Permitted Liens, as the case may be, and other Liens permitted under Section 4.10. For purposes of this Section 4.15.01, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
. Notwithstanding the foregoing clauses (b) The provisions of Sections 4.1(a)(2i), (ii), (iii), (iv) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to v), the Company may merge with an Affiliate that is a Person that has no material assets or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company liabilities and a newly-created Affiliate incorporated which was organized solely for the purpose of reincorporating reorganizing the Company in another State of jurisdiction in the United States States, any State thereof or in another province or under the federal laws District of Canada, Columbia so long as, in each case, as the amount of Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) . Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, 5.01 in which the Company is not the surviving or continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture Agreement, the Security Documents and the Notes with the same effect as if such Successor Company Surviving Entity had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(db) Notwithstanding anything Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Agreement in connection with any transaction complying with Section 4.06) shall not, and the 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 of such Guarantor’s assets whether as an entirety or substantially as an entirety to any Person other than the Company or any other Guarantor unless:
(i) the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized and existing under the laws of the United States or any State thereof or the District of Columbia;
(ii) such entity assumes by joinder or other documents or instruments (in each case, in form and substance reasonably satisfactory to the contrary hereinPurchaser) all of the obligations of the Guarantor on the Guarantee and the applicable Security Documents and Intercreditor Agreement;
(iii) immediately after giving effect to such transaction, neither no Default or Event of Default shall have occurred and be continuing;
(iv) to the Company nor extent any assets of the Person which is consolidated with or merged with or into such entity are assets of the type which 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 Agreement 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 Agreement and the Security Documents; and
(v) the Collateral owned by or transferred to such entity shall (A) continue to constitute Collateral under this Agreement and the Security Documents, (B) be subject to the Lien favor of the Notes Collateral Agent for the benefit of the Purchaser, the Trustee and the Securities Holders and (C) not be subject to any Lien other than Permitted Liens and other Liens permitted under Section 4.10. Subject to certain limitations described in this Agreement, such entity will succeed to, and be substituted for, such Guarantor under this Agreement, the Security Documents, the Intercreditor Agreement and such Guarantor’s Guarantee. Notwithstanding the foregoing clauses (i), (ii), (iii), (iv) and (v), any Guarantor may merge with an Affiliate that is a Person that has no material assets or liabilities and which was organized solely for the purpose of reorganizing the Guarantor 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 and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.is not increased thereby
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes Notes, the Indenture and this Indenture the Registration Rights Agreement on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.12; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Certificate officers' certificate and an Opinion opinion of Counselcounsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. For purposes of this Section 4.1, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Companysatisfied.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the Company’s properties and assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for (it being understood that each of (i) the Company sale, assignment, transfer, lease, conveyance or other disposition of Securitization Assets, Repurchase Agreement Assets, Investments or other securities or assets, in each case in the ordinary course of business or consistent with past practice and its Restricted Subsidiaries)(ii) a Permitted Business Transfer shall not constitute the sale, assignment, transfer, lease, conveyance or disposition of all or substantially all of the Company’s properties and assets) to any Person, unless:
(1) either:
(A) the Company shall be the surviving or continuing corporationPerson; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and all or substantially all of the Company’s Restricted Subsidiaries substantially as an entirety properties and assets (the “Successor CompanySurviving Entity”):
(i) will shall be an entity organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof; provided that Columbia, and if the Successor Company Surviving Entity is not a corporation, then a co-obligor of the Notes is a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notessuch laws; and
(ii) will shall expressly assume, by supplemental indenture (in form reasonably satisfactory to the Trustee)indenture, executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of in the Notes and this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving pro forma effect to such transaction and and, if applicable, the assumption contemplated by clause Section 5.01(a) (1)(B)(ii) above (including giving effect on a pro forma basis effect to any IndebtednessIndebtedness and Acquired Indebtedness incurred and any repayment, including any Acquired Indebtednessrepurchase, Incurred defeasance, redemption or anticipated to be Incurred in connection with or in respect other discharge of such transaction), (A) Indebtedness by the Company or such Successor Companythe Surviving Entity, as the case may be, is or any of their respective Subsidiaries in connection with such transaction), the Company or such Surviving Entity, as the case may be: (a) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction, in each case determined based on the Consolidated Net Worth of the Company or the Surviving Entity, as the case may be, as of the end of the most recent fiscal quarter ending on or prior to the date of such transaction for which financial statements of the Company or the Surviving Entity, as the case may be, are internally available; or (b) shall be able to Incur incur at least $1.00 of additional Indebtedness pursuant to Section 3.8(a) 4.07(b); or (Bc) shall have a Consolidated Non-Funding Debt to Equity Ratio that is not greater than the Consolidated Leverage Non-Funding Debt to Equity Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving pro forma effect to such transaction (and treating any Indebtedness and Acquired Indebtedness that becomes an obligation of the assumption contemplated Company or the Surviving Entity, as the case may be, or any of its Subsidiaries as a result of such transaction as having been incurred by clause (1)(B)(ii) above (includingthe Company or the Surviving Entity, without limitationas the case may be, giving effect on a pro forma basis to or such Subsidiary at the time of such transaction, and any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated Indebtedness to be Incurred and repaid, repurchased, defeased, redeemed or otherwise discharged by the Company or the Surviving Entity or any Lien granted of their respective Subsidiaries in connection with such transaction as having been repaid, repurchased, defeased, redeemed or in respect otherwise discharged at the time of such transaction), no Default or Event of Default shall have occurred or and be continuing;
(4) if the Surviving Entity is not the Company, each Note Guarantor (including Persons that become Note Guarantors as a result of such transactionunless it is the Surviving Entity, in which case Section 5.01(a)(1)(B) has confirmed above shall apply) shall have by supplemental indenture confirmed that its Note Guarantee will of the Notes shall apply to the Obligations of the Successor Company in respect of such Surviving Entity’s obligations under this Indenture and the Notes; and
(5) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of CounselCounsel (which Opinion of Counsel may be subject to customary assumptions, limitations and exceptions), each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with the supplemental indentureapplicable provisions of this Indenture.
(b) Notwithstanding the provisions of Section 5.01(a), comply with this Indenture any Subsidiary of the Company may merge into or transfer all or any part of its properties and that all conditions precedent in this Indenture relating assets to the transaction have been complied withCompany or the Surviving Entity or any other Subsidiary of the Company or the Surviving Entity or consolidate with any other Subsidiary of the Company or the Surviving Entity and, except in the case of a merger into the Company or the Surviving Entity, Section 5.01(f), shall not apply to any such transaction. In addition, notwithstanding the foregoing provisions of this Section 5.01, any Subsidiary of the Company may consolidate with the Company or the Surviving Entity, and Sections 5.01(a)(2) and 5.01(a)(3) shall not apply to any such transaction.
(c) For purposes of this Section 4.1the foregoing, the transfer (by sale, assignment, sale transfer, lease, conveyance or otherwiseother disposition, in a single transaction or series of related transactions) , of all or substantially all of the properties or and assets of one or more Restricted Subsidiaries of the Company (it being understood that each of (i) the sale, assignment, transfer, lease, conveyance or other disposition of Securitization Assets, Repurchase Agreement Assets, Investments or other securities or assets, in each case in the ordinary course of business or consistent with past practice and (ii) a Permitted Business Transfer shall not constitute the sale, assignment, transfer, lease, conveyance or disposition of all or substantially all of the Company’s properties and assets), the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)basis, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bd) The provisions For purposes of Sections 4.1(a)(2) clarity, it is understood and 4.1(a)(5) above will not apply to:
agreed that references in this Section 5.01 to sales, assignments, transfers, leases, conveyances or other dispositions of Securitization Assets, Repurchase Agreement Assets, Investments or other securities or assets in the ordinary course of business or consistent with past practice shall include, without limitation, any sales, assignments, transfers, leases, conveyances or other dispositions of Securitization Assets, Repurchase Agreement Assets, Investments or other securities or assets (1) that are made (x) to any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created Securitization Entity for the purpose of holding enabling such Securitization Entity to securitize the Capital Stock assets so sold, assigned, transferred, leased, conveyed or disposed of or enabling such Securitization Entity to issue Non-Recourse Indebtedness secured by such assets or to enter into any Repurchase Agreements with respect to such assets or (y) to any Person pursuant to a Repurchase Agreement that is otherwise permitted (or not prohibited) by this Indenture, under which such Person is a buyer of Repurchase Agreement Assets, and (2) that the Company in good faith determines to be (i) in the ordinary course of business or (ii) consistent with past practice of the Company or any of its Subsidiaries or to reflect customary or accepted practice in the businesses, industries or markets in which the Company or any of its Subsidiaries operates or reasonably expects to operate or that reflect reasonable extensions, evolutions or developments of any of the foregoing (including, without limitation, by way of new transactions or structures), and as a result, none of the foregoing shall constitute a sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the Company; or
(4) ’s properties and assets, on a merger between the Company and a newly-created Affiliate incorporated solely consolidated basis or otherwise, for the purpose of reincorporating the Company in another State purposes of the United States or in another province or under the federal laws other paragraphs of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased therebythis Section 5.01.
(ce) Upon any consolidation, combination consolidation or merger or any transfer sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties and or assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, the foregoing in which the Company is not the surviving or continuing corporationentity, as the case may be, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company Surviving Entity had been named as such. For the avoidance of doubt“Company” herein and therein, compliance with this Section 4.1 will not affect the Obligations of and the Company (including shall be released from all of its obligations under this Indenture and the Notes; provided that, in the case of a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease of all or substantially all of the properties and assets of the Company, the Company will not be released from its obligation to pay the principal of and premium, if any, and interest on the Notes.
(f) If the Surviving Entity in any transaction described in, and made in compliance with, this Section 5.01 shall be a Guarantor of the Notes, or their respective properties if a Guarantor shall merge or assets considered consolidate with or into the Company or the Surviving Entity, as one enterprisethe case may be, in one or more related transactionsany transaction described in, to any other Personand made in compliance with this Section 5.01, such Guarantor’s Guarantee of the Notes will automatically terminate and be released and such Guarantor will automatically be released from all of its obligations under its Guarantee of the Notes and all of its obligations as a Guarantor under this Indenture contemporaneously with such transaction.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, unless:
Person unless (1i) either:
either (Aa) the Company shall be the surviving or continuing corporation; or
corporation or (Bb) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or States, any State state thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes Notes, this Indenture, and this Indenture the Registration Rights Agreement on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(b)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (1) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (2) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.12; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(b)(y) above (including, without limitation, limitation giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.15.01, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The Each Subsidiary Guarantor (other than any Subsidiary Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2Section 4.15) will not, and 4.1(a)(5) above the Company will not apply cause or permit any Subsidiary Guarantor to:
(1) , consolidate with or merge with or into any transfer of the properties or assets of a Restricted Subsidiary to Person other than the Company or to another Restricted Subsidiary;
any other Subsidiary Guarantor unless: (2i) subject to Section 10.3, the entity formed by or surviving any such consolidation or merger of is a Restricted Subsidiary into corporation organized and existing under the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State laws of the United States or in another province any State thereof or under the federal laws District of CanadaColumbia; (ii) such entity assumes by supplemental indenture all of the obligations of the Subsidiary Guarantor on the Guarantee; (iii) immediately after giving effect to such transaction, so long as, in each caseno Default or Event of Default shall have occurred and be continuing; and (iv) immediately after giving effect to such transaction and the use of any proceeds therefrom on a pro forma basis, the Indebtedness Company could satisfy the provisions of clause (ii) of the first paragraph of this Section 5.01. Any merger or consolidation of a Subsidiary Guarantor with and into the Company (with the Company being the surviving entity) or another Subsidiary Guarantor that is a Wholly Owned Restricted Subsidiary of the Company need only comply with clause (iv) of the first paragraph of this Section 5.01. The Company or the surviving entity shall have delivered to the Trustee an Officers' Certificate and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any an Opinion of Counsel, each stating that such consolidation, combination merger, sale, assignment, transfer, lease, conveyance or merger or any transfer other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if that all conditions precedent in this Indenture relating to such Successor Company had transaction have been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicablesatisfied.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Penn National Gaming Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, ) unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted 's Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) the federal laws of Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized thereof and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assumeassume as primary obligor, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
, as the case may be; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii) (2) (y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (1) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (2) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.12; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii) (2) (y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ Certificate officer's certificate and an Opinion opinion of Counselcounsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(bc) The Each Subsidiary Guarantor (other than any Subsidiary Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2Section 4.15) will not, and 4.1(a)(5) above the Company will not apply cause or permit any Subsidiary Guarantor to:
(1) , consolidate with or merge with or into any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into Person other than the Company or another Restricted Subsidiary;
(3) any merger of the Company into Subsidiary Guarantor that is a Wholly Owned Subsidiary of unless: (a) the Company created for entity formed by or surviving any such consolidation or merger (if other than the purpose of holding Subsidiary Guarantor) or to which such sale, lease, conveyance or other disposition shall have been made is a corporation organized and existing under the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State laws of the United States or in another province any state thereof or under the District of Columbia or the federal laws of Canada, so long as, in each case, the Indebtedness Canada or any province thereof; (b) such entity assumes by execution of a supplemental indenture all of the Company and obligations of the Subsidiary Guarantor under its Restricted Subsidiaries taken as a whole is not increased thereby.
Guarantee; (c) Upon any consolidationimmediately after giving effect to such transaction, combination no Default or merger or any transfer Event of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, Default shall have occurred and be substituted for, continuing; and may exercise every right (d) immediately after giving effect to such transaction and power ofthe use of any net proceeds therefrom on a pro forma basis, the Company under this Indenture and could satisfy the Notes with the same effect as if such Successor Company had been named as such. For the avoidance provisions of doubt, compliance with clause (ii) of paragraph (a) of this Section 4.1 will not affect the Obligations 5.01. Any merger or consolidation of a Subsidiary Guarantor with and into the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither with the Company nor being the Company and its Restricted Subsidiaries taken as surviving entity) or another Subsidiary Guarantor that is a whole may, directly or indirectly, lease all or substantially all Wholly Owned Subsidiary need only comply with clause (iv) of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Personparagraph (a) of this Section 5.01.
Appears in 1 contract
Samples: Indenture (3003969 Nova Scotia LTD)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, unless:
Person unless (1i) either:
either (Aa) the Company shall be the surviving or continuing corporation; or
corporation or (Bb) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or States, any State state thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes Notes, this Indenture, and this Indenture the Registration Rights Agreement on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(b)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is (1) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (2) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.12; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(b)(y) above (including, without limitation, limitation giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied withsatisfied. For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not other than the Company is the surviving or continuing PersonMerger), or sell, assign, transfer, lease, convey or 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 of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Company's Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) with respect to such a consolidation or merger, the Company shall be the 90 - 82 - surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s 's Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a4.12; (iii) or (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. For purposes of this Section 4.1, the transfer (by assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Companysatisfied.
(bx) The Xxxx Xxxxxxxxx (xxxxx xxxn any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2Section 4.16) will not, and 4.1(a)(5) above the Company will not apply cause or permit any Guarantor to:
(1) , consolidate with or merge with or into any transfer of the properties or assets of a Restricted Subsidiary to Person other than the Company or any other Guarantor unless: (i) the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) or to another Restricted Subsidiary;
(2) subject to Section 10.3which such sale, any merger of lease, conveyance or other disposition shall have been made is a Restricted Subsidiary into corporation organized and existing under the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State laws of the United States or in any State thereof or the District of Columbia; (ii) such entity assumes by supplemental indenture all of the obligations of the Guarantor on the Guarantee; and (iii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Any merger or consolidation of a Guarantor with and into the Company (with the Company being the surviving entity) or another province or under the federal laws of Canada, so long as, in each case, the Indebtedness Guarantor that is a Wholly Owned Restricted Subsidiary of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
need only comply with clause (civ) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets first paragraph of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable5.01.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Kci New Technologies Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) after the Spin-Off Date all or substantially all of the properties and Company's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its the Restricted Subsidiaries), ) whether as an entirety or substantially as an entirety to any Person, Person unless:
: (i) either (1) either:
(A) the Company shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes Securities and the performance and observance of every covenant of the Notes and Securities, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed;
; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection 107 -97- with or in respect of such transaction), (A) the Company or such Successor CompanySurviving Entity, as the case may be, is shall be able to Incur incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.8(a) or 4.03; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or and be continuing;
; and (4) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5iv) the Company or the Successor Company has Surviving Entity shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the CompanySubsidiaries, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries)Company, will shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. In addition, for purposes of the foregoing, consummation of the Spin-Off Transactions shall be deemed not to be a transfer, conveyance or disposition of substantially all of the Company's assets.
(bc) The No Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Sections 4.1(a)(2) Section 4.12 will, and 4.1(a)(5) above the Company will not apply cause or permit any Guarantor to:
(1) , consolidate with or merge with or into any transfer of the properties or assets of a Restricted Subsidiary to Person other than the Company or to another Restricted Subsidiary;
any other Guarantor unless: (2i) subject to Section 10.3, the entity formed by or surviving any such consolidation or merger of (if other than the 108 -98- Guarantor) is a Restricted Subsidiary into corporation organized and existing under the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State laws of the United States or in another province any State thereof or under the federal laws District of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
Columbia; (cii) Upon any consolidation, combination or merger or any transfer of all or substantially such entity assumes by supplemental indenture all of the properties and assets obligations of the Guarantor under this Indenture, such Guarantor's Guarantee and the Registration Rights Agreement; (iii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; (iv) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the Company and its Restricted Subsidiaries in accordance with could satisfy the provisions of clause (a)(ii) of this Section 4.1, in which 5.01; and (v) the Company is not shall have delivered to the continuing corporationTrustee an Officers' Certificate and Opinion of Counsel, the Successor Company formed by each stating that such consolidation or into which merger and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under applicable provisions of this Indenture and the Notes with the same effect as if that all conditions precedent in this Indenture relating to such Successor Company had transaction have been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicablesatisfied.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (Tenneco Automotive Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will LNR shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, convey or otherwise dispose of) all or substantially all of the properties and LNR's assets of the Company or the Company and its Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company LNR and its Restricted Subsidiaries), to any Person, ) unless:
: (i) either (1) either:
(A) the Company LNR shall be the surviving or continuing corporation; or
corporation or (B2) the Person (if other than the CompanyLNR) formed by such consolidation or into which the Company LNR is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company LNR and of the Company’s Restricted its Subsidiaries substantially as an entirety (the “Successor Company”):
"Surviving Entity") (ix) will shall be an entity a corporation organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or and (y) Canada or any province or territory thereof; provided that if the Successor Company is not a corporation, then a corporation wholly owned by such Person organized and validly existing under the laws of (x) the United States or any State thereof or the District of Columbia or (y) Canada or any province or territory thereof that does not and will not have any material assets or operations shall become a co-issuer of the Notes; and
(ii) will expressly assume, by supplemental indenture (in form reasonably and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium (including any Additional Amounts)premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and Notes, this Indenture and the Registration Rights Agreement on the part of the Company LNR to be performed or observed;
, as the case may be; (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred in connection with or in respect of such transaction), (A) the Company LNR or such Successor CompanySurviving Entity, as the case may be, is (1) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of LNR immediately prior to such transaction and (2) shall be able to Incur incur at least $1.00 of additional Indebtedness (other than additional Permitted Indebtedness) pursuant to Section 3.8(a) or 4.12; (B) the Consolidated Leverage Ratio of the Successor Company and its Restricted Subsidiaries would be less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(3iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(iii)(2)(y) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Indebtedness and Acquired Indebtedness, Incurred Indebtedness incurred or anticipated to be Incurred incurred and any Lien granted in connection with or in respect of such the transaction), no Default or Event of Default shall have occurred or be continuing;
; and (4iv) each Note Guarantor (including Persons that become Note Guarantors as a result of such transaction) has confirmed by supplemental indenture that its Note Guarantee will apply to the Obligations of the Successor Company in respect of this Indenture and the Notes; and
(5) the Company LNR or the Successor Company has Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that the such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, the such supplemental indenture, indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the such transaction have been complied with. satisfied.
(b) For purposes of this Section 4.1the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the CompanyLNR, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will LNR shall be deemed to be the transfer of all or substantially all of the properties and assets of the CompanyLNR.
(b) The provisions of Sections 4.1(a)(2) and 4.1(a)(5) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) subject to Section 10.3, any merger of a Restricted Subsidiary into the Company or another Restricted Subsidiary;
(3) any merger of the Company into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock of the Company; or
(4) a merger between the Company and a newly-created Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States or in another province or under the federal laws of Canada, so long as, in each case, the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 4.1, in which the Company is not the continuing corporation, the Successor Company formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Company had been named as such. For the avoidance of doubt, compliance with this Section 4.1 will not affect the Obligations of the Company (including a Successor Company, if applicable) under Section 3.21, if applicable.
(d) Notwithstanding anything to the contrary herein, neither the Company nor the Company and its Restricted Subsidiaries taken as a whole may, directly or indirectly, lease all or substantially all of its or their respective properties or assets considered as one enterprise, in one or more related transactions, to any other Person.
Appears in 1 contract
Samples: Indenture (LNR Property Corp)
