Merger, Consolidation and Sale of Assets. (a) The Company will not consolidate with or merge into any other Person or sell, convey, transfer or lease all or substantially all its assets to any other Person, unless (1) the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall (A) be incorporated or otherwise organized under the laws of the United States, any state thereof or the District of Columbia, and (B) expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, no Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing. (b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated. (c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 2 contracts
Samples: Seventh Supplemental Indenture (Ecolab Inc.), Supplemental Indenture (Ecolab Inc.)
Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities:
(a) The Company will not consolidate with any other entity or merge permit a merger of any other entity into the Company or permit the Company to be merged into any other Person entity, or sell, convey, transfer or lease all or substantially all of the assets of the Company and its assets subsidiaries, taken as a whole, to any other Personanother entity, unless (1i) the Person formed by such consolidation or into which either the Company is merged shall be the continuing entity, or to which such salethe successor, conveyance, transfer transferee or lease is made lessee entity (if other than the Company) shall (A) be incorporated or otherwise organized and existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (B) expressly assume, by indenture supplemental indenturehereto, executed and delivered by such Person entity prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the NotesSecurities, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the this Indenture or under the Notes Securities to be performed or observed by the Company; and (2ii) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, no Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or the successor, transferee or lessee entity (Zif other than the Company) would not be in Default in the performance of any merger covenant or condition of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizingthis Indenture.
(b) Upon any consolidation of the Company with or merger of the Company into any other Personentity, or any sale, conveyance, conveyance or transfer or lease of all or substantially all of the assets of the Company to any other Personand its subsidiaries, taken as a whole, in accordance with this Section 5.046.04, the Person successor entity formed by such consolidation or into or with which the Company is merged or to which the Company is sold or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the this Indenture with the same effect as if such successor Person entity had been named as the Company in the Indentureherein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the this Indenture and the NotesSecurities, and from time to time such Person entity may exercise each and every right and power of the Company under the this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the this Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person entity that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance sale or transferconveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.046.04) shall be relieved of and discharged from all obligations and covenants under the this Indenture and the Notes Securities and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 2 contracts
Samples: Indenture (Green Bancorp, Inc.), Indenture (Green Bancorp, Inc.)
Merger, Consolidation and Sale of Assets. (a) The Company will not shall not, in a single transaction or a series of related transactions, consolidate with or merge into any other Person with or into, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of all or substantially all of its assets to any other Personto, unless another Person or Persons or adopt a Plan of Liquidation unless:
(1) the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall either (A) the Company shall be incorporated the survivor of such merger or otherwise consolidation or (B) the surviving Person (the "Surviving Entity") is a corporation, partnership, limited liability company or trust organized and existing under the laws of the United States, any state thereof or the District of Columbia, Columbia and (B) such Surviving Entity shall expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, assume all the due and punctual payment obligations of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or Company under the Notes to be performed or observed by the Company; and this Indenture;
(2) immediately after giving effect to such consolidationtransaction (on a pro forma basis, mergerincluding any Indebtedness incurred or anticipated to be incurred in connection with such transaction), salethe Company or the Surviving Entity, conveyanceas the case may be, transfer (A) shall have a Consolidated Net Worth equal to or leasegreater than the Consolidated Net Worth of the Company immediately prior to such transaction and (B) shall be able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.12;
(3) immediately before and immediately after giving effect to such transaction (including any Indebtedness incurred or anticipated to be incurred in connection with the transaction), no Default or Event of Default shall have occurred and be continuing. Clause ; and
(24) the Company or the Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers' Certificate 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) complies with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company properties and assets of one or more Subsidiaries of the Company, (Y) any merger the Capital Stock of which constitutes all or substantially all of the Company into any Subsidiary properties and assets of the Company or (Z) any merger of Company, shall be deemed to be the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the properties and assets of the Company to Company. Notwithstanding the foregoing clauses (2) and (3), (a) any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer Restricted Subsidiary of the Company may be done with like force consolidate with, merge into or transfer all or part of its properties and effect by the like board or officer of any Person that shall at the time be the successor of assets to the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, and (b) the Company (or any successor entity which shall theretofore have become such may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedanother jurisdiction.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 2 contracts
Samples: Indenture (Therma Wave Inc), Indenture (Therma Wave Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not shall not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company's assets (determined on a consolidated basis for the Company and the Company's Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless Person unless: (i) either (1) the Company shall be the surviving or continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Company's Restricted Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest and premium, if any, on all of the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under every covenant of the Notes and this Indenture on the part of the Company to be performed or observed by the Companyobserved; and (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Company or such Surviving Entity, as the case may be, shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and; (iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and (iv) the Company 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, conveyanceassignment, transfer or transfer, lease, no Default shall 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 occurred been satisfied. Notwithstanding the foregoing clauses (ii) and be continuing. Clause (2) of the immediately preceding sentence shall not apply to iii), (Xa) any saleRestricted Subsidiary may consolidate with, conveyance, merge into or transfer all or lease between or among the Company part of its properties and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of assets to the Company or to another Restricted Subsidiary and (Zb) any merger of the Company into may merge with or transfer all of its properties and assets to an Affiliate of the Company incorporated or formed solely for the purpose of either reincorporating or reforming the Company reincorporating or reorganizingin 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) Upon any consolidation For purposes of this Section 5.01, the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation Capital Stock of which constitutes all or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from substantially all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name properties and assets of the Company, shall be deemed to be the transfer of all or in its own name; and any act or proceeding by any provision substantially all of the Indenture required or permitted to be done by the Board of Directors or any officer properties and assets of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedCompany.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 2 contracts
Samples: Indenture (Roadhouse Grill Inc), Indenture (Roadhouse Grill Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company’s assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless 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 to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and the Restricted Subsidiaries substantially as an entirety (the “Surviving Entity”) (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest and premium, if any, and interest on all of the Notes, according to their tenor, Securities and the due and punctual performance and observance of all other obligations to every covenant of the Holders Securities, this Indenture and the Trustee under Registration Rights Agreement on the Indenture or under part of the Notes Company to be performed or observed by the Company; and observed;
(2) immediately after giving effect to such consolidationtransaction on a pro forma basis and the assumption contemplated by clause (1)(B)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), mergerthe Company or such Surviving Entity, saleas the case may be, conveyanceshall be able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.03; provided, transfer however, that this clause (2) shall not be effective 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)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or leaseanticipated 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. Clause ; and
(24) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger 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 Company into an Affiliate applicable provisions of the Company for the purpose of the Company reincorporating or reorganizingthis Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
(b) Upon any consolidation For purposes of the Company with foregoing, the transfer (by lease, assignment, sale or merger otherwise, in a single transaction or series of the Company into any other Person, or any sale, conveyance, transfer or lease transactions) of all or substantially all of the properties or assets of the Company to any other Person, in accordance with this Section 5.04one or more Restricted Subsidiaries, the Person formed by such consolidation Capital Stock of which constitutes all or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from substantially all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name properties and assets of the Company, shall be deemed to be the transfer of all or in its own name; and any act or proceeding by any provision substantially all of the Indenture required or permitted to be done by the Board of Directors or any officer properties and assets of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedCompany.
(c) The Trustee, subject 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 10.01 Section 4.12) will, and 10.02 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 Existing IndentureUnited 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 Trustee), may receive executed and delivered to the Trustee, the performance of every covenant of the Securities, this Indenture and the Registration Rights Agreement 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;
(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 (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 shall have delivered to the Trustee an Officers’ Certificate and Opinion of Counsel, prepared each stating that such consolidation or merger and, if a supplemental indenture is required in accordance connection with Section 15.01 of the Existing Indenturesuch transaction, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies supplemental indenture comply with the applicable provisions of the Indenturethis Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
Appears in 2 contracts
Merger, Consolidation and Sale of Assets. (a) The Company will shall not consolidate merge, consolidate, liquidate, dissolve, wind up or amalgamate with or merge into any other Person or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all its assets to Property in any other Person, unless one transaction or series of transactions unless:
(1i) the Company shall be the Surviving Person in such merger, consolidation, liquidation, dissolution, winding-up or amalgamation, or the Surviving Person (if other than the Company) formed by such merger, consolidation or into which the Company is merged amalgamation or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall (A) be incorporated a corporation organized and existing under the federal laws of Canada or otherwise organized under the laws of any province thereof or the laws of the United StatesStates of America, any state State thereof or the District of Columbia, and ;
(Bii) the Surviving Person (if other than the Company) expressly assumeassumes, by supplemental indenture, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leaseSurviving Person, the due and punctual payment of the principal of and interest of, and premium, if any, on and accrued and unpaid interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under the conditions of this Indenture or under the Notes to be performed or observed by the Company; ;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of the Company, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (2and treating, for purposes of this clause (iv) and clause (v) below, any Debt that becomes an obligation of the Surviving Person or any Restricted Subsidiary as a result of such transaction or series of transactions as having been Incurred by the Surviving Person or such Restricted Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing;
(v) immediately after giving effect to such transaction or series of transactions on a pro forma basis, either (i) the Company or the Surviving Person, as the case may be, would be able to Incur at least $1.00 of additional Debt under Section 4.09(a)(i) hereof or (ii) the Consolidated Interest Coverage Ratio of the Company or the Surviving Person, as the case may be, would be equal to or greater than such ratio immediately prior to such transaction; and
(vi) the Company shall deliver, or cause to be delivered, to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction and the supplemental indenture, if any, with respect thereto comply with this Section 5.01 and that all conditions precedent herein provided for relating to such transaction have been satisfied and that such supplemental indenture is the valid and binding obligation of the Company or Surviving Person enforceable against it in accordance with its terms.
(b) The Company shall not permit the Co-Issuer or any Subsidiary Guarantor to merge, consolidate, liquidate, dissolve, wind up or amalgamate with or into any other Person or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all its Property in any one transaction or series of transactions unless:
(i) the Surviving Person (if not the Co-Issuer or such Subsidiary Guarantor) formed by such merger, consolidation, mergerliquidation, dissolution, winding-up or amalgamation or to which such sale, conveyancetransfer, transfer or assignment, lease, conveyance or disposition is made shall be a corporation organized and existing under the federal laws of Canada or the laws of any province thereof or the laws of the United States of America, any State thereof or the District of Columbia;
(ii) the Surviving Person (if other than the Co-Issuer or such Subsidiary Guarantor) expressly assumes, by supplemental indenture, executed and delivered to the Trustee by such Surviving Person, the due and punctual performance and observance of all the obligations of the Co-Issuer under this Indenture and the Notes or such Subsidiary Guarantor under its Subsidiary Guarantee, as applicable;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of the Co-Issuer or such Subsidiary Guarantor, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iv) and clause (v) below, any Debt that becomes an obligation of the Surviving Person, the Company or any Restricted Subsidiary as a result of such transaction or series of transactions as having been Incurred by the Surviving Person, the Company or such Restricted Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ;
(2v) immediately after giving effect to such transaction or series of the immediately preceding sentence shall not apply to transactions on a pro forma basis, either (Xi) any sale, conveyance, transfer or lease between or among the Company and one would be able to Incur at least $1.00 of additional Debt under Section 4.09(a)(i) hereof or more Subsidiaries of (ii) the Company, (Y) any merger Consolidated Interest Coverage Ratio of the Company into any Subsidiary would be equal to or greater than such ratio immediately prior to such transaction; and
(vi) the Company shall deliver, or cause to be delivered, to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction and the supplemental indenture, if any, with respect thereto comply with this Section 5.01 and that all conditions precedent herein provided for relating to such transaction have been satisfied and that such supplemental indenture is the valid and binding obligation of the Company Co-Issuer, such Subsidiary Guarantor or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Surviving Person, or any saleas applicable, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, enforceable against it in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedterms.
(c) The TrusteeThis Section 5.01 shall not prohibit the Co-Issuer or any Subsidiary Guarantor from consolidating with, subject merging into or transferring all or part of its assets to the Company or any other Subsidiary Guarantor. In addition, the foregoing provisions (other than subclause (iv) of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.clauses (a) and
Appears in 2 contracts
Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities:
(a) The Company No Obligor will not consolidate with any other entity or merge permit a merger of any other entity into such Obligor or permit such Obligor to be merged into any other Person entity, or sell, convey, transfer or lease all or substantially all its assets to any other Personanother entity, unless (1i) either such Obligor shall be the Person formed by continuing entity, or the successor, transferee or lessee entity (if other than such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made Obligor) shall (A) be incorporated or otherwise organized and existing under the laws of the United States, States or any state State thereof or the District of Columbia, and (B) shall expressly assume, by indenture supplemental indenturehereto, executed and delivered by such Person entity prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the NotesSecurities, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the this Indenture or under the Notes Securities to be performed or observed by the Companysuch Obligor; and (2ii) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, such Obligor or the successor, transferee or lessee entity (if other than such Obligor) would not be in Default in the performance of any covenant or condition of this Indenture and no Event of Default shall would have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Personentity, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, an Obligor in accordance with this Section 5.046.04, the Person successor entity formed by such consolidation or into or with which the Company such Obligor is merged or to which such sale, Obligor is sold or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company such Obligor under the this Indenture with the same effect as if such successor Person entity had been named as the Company in the Indenturesuch Obligor herein, and thereafter, except in the case of a lease, the predecessor Company Obligor shall be relieved of and discharged from all obligations and covenants under the this Indenture and the NotesSecurities, and from time to time such Person entity may exercise each and every right and power of the Company such Obligor under the this Indenture, in the name of the Companysuch Obligor, or in its own name; and any act or proceeding by any provision of the this Indenture required or permitted to be done by the Board of Directors or any officer of the Company such Obligor may be done with like force and effect by the like board or officer of any Person entity that shall at the time be the successor of the Company such Obligor hereunder. In the event of any such sale, conveyance sale or transferconveyance, but not any such lease, the Company applicable Obligor (or any successor entity which shall theretofore have become such in the manner described in this Section 5.046.04) shall be relieved of and discharged from all obligations and covenants under the this Indenture and the Notes Securities and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 2 contracts
Samples: Indenture (Healthpeak OP, LLC), Supplemental Indenture (Healthpeak Properties, Inc.)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not merge, consolidate or amalgamate with or merge into any other Person (other than a merger of a Wholly Owned Subsidiary into the Company) or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all of its assets to Property in any other Person, unless one transaction or series of transactions unless:
(1i) the Company shall be the Surviving Person in such merger, consolidation or amalgamation, or the Surviving Person (if other than the Company) formed by such merger, consolidation or into which the Company is merged amalgamation or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall (A) be incorporated or otherwise a corporation organized and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia, and ;
(Bii) the Surviving Person (if other than the Company) expressly assumeassumes, by supplemental indentureindenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leaseSurviving Person, the due and punctual payment of the principal of and interest of, and premium, if any, on and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under the conditions of this Indenture or under the Notes to be performed or observed by the Company; ;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of the Company, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iv) and clauses (v) and (2vi) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person or any Subsidiary of the Company as a result of such transaction or series of transactions as having been Incurred by the Surviving Person or such Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing;
(v) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis:
(1) the Company or the Surviving Person, as the case may be, would be able to Incur at least $1.00 of additional Debt under clause (1) of Section 4.09; and
(2) the Company or the Surviving Person, as the case may be, would have a Fixed Charge Coverage Ratio that is not lower than the Fixed Charge Coverage Ratio of the Company immediately prior to such transaction;
(vi) immediately after giving effect to such transaction or series of transactions on a pro forma basis, the Surviving Person shall have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Company immediately prior to such transaction or series of transactions;
(vii) the Company shall deliver, or cause to be delivered, to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction or series of transactions and the supplemental indenture, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied; and
(viii) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders will not recognize income, gain or loss for federal income tax purposes as a result of such transaction and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such transaction had not occurred. The foregoing provisions (other than clause (iv)) shall not apply to any transaction or series of transactions which constitute an Asset Sale if the Company has complied with Section 4.12.
(b) The Company shall not permit any Guarantor to merge, consolidate or amalgamate with or into any other Person (other than a merger of a Wholly Owned Subsidiary into the Company or such Guarantor) or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all its Property in any one transaction or series of transactions unless:
(i) the Surviving Person (if not such Guarantor) formed by such merger, consolidation or amalgamation or to which such sale, conveyancetransfer, transfer or assignment, lease, conveyance or disposition is made shall be a corporation, company (including a limited liability company) or partnership organized and existing under the laws of the United States of America, any State thereof or the District of Columbia;
(ii) the Surviving Person (if other than such Guarantor) expressly assumes, by supplemental indenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Person, the due and punctual performance and observance of all the obligations of such Guarantor under its Guarantee;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of such Guarantor, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iv) and clauses (v) and (vi) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person, the Company or any of its Subsidiaries as a result of such transaction or series of transactions as having been Incurred by the Surviving Person, the Company or such Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ;
(v) immediately after giving effect to such transaction or series of transactions on a pro forma basis:
(1) the Company would be able to Incur at least $1.00 of additional Debt under clause (1) of the first paragraph of Section 4.09 , and
(2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of would have a Fixed Charge Coverage Ratio which is not lower than the Company, (Y) any merger Fixed Charge Coverage Ratio of the Company into any Subsidiary immediately prior to such transaction; and
(vi) immediately after giving effect to such transaction or series of transactions on a pro forma basis, the Company shall have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Company immediately prior to such transaction or series of transactions;
(Zvii) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Personshall deliver, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted cause to be done by delivered, to the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 an Officers’ Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared each stating that such transaction or series of transactions and the supplemental indenture, if any, in accordance respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied; and
(viii) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders will not recognize income, gain or loss for federal income tax purposes as a result of such transaction and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such transaction had not occurred. The foregoing provisions (other than clause (iv)) shall not apply to any transaction or series of transactions which constitute an Asset Sale if the Company has complied with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture4.12.
Appears in 2 contracts
Samples: Indenture (Fushi International Inc), Indenture (Fushi International Inc)
Merger, Consolidation and Sale of Assets. With respect to the Notes only (a) The Company will and not consolidate with or merge into any other Person series of Securities issued pursuant to the Base Indenture), Section 6.04 of the Base Indenture is replaced in its entirety with the following:
(1) XX Xxxxx or the Issuer may consolidate with, or sell, convey, transfer lease or lease convey all or substantially all of its assets to to, or merge with or into, any other Personentity (whether or not affiliated with XX Xxxxx or the Issuer), unless or enter into successive consolidations or mergers, provided that the following conditions are met:
(1a) XX Xxxxx or the Person Issuer, as the case may be, shall be the continuing entity, or the successor entity (if other than XX Xxxxx or the Issuer, as the case may be) formed by such or resulting from any consolidation or into merger or which shall have received the Company is merged or to which such sale, conveyance, transfer or lease is made of assets shall (A) be incorporated or otherwise a Person organized and existing under the laws of the United StatesStates of America, any state thereof or the District of Columbia, Columbia and shall expressly assume (Bi) expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasein the case of the Issuer, the due and punctual payment of the principal of and interest (and premium, if any, ) and interest on all the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other of the covenants and obligations to the Holders and the Trustee under contained in the Indenture or (ii) in the case of XX Xxxxx, all of the obligations of XX Xxxxx under the Notes Guarantee of the Notes;
(b) Immediately after giving effect to the transaction, no Event of Default under the Indenture, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be performed continuing; and
(c) Either XX Xxxxx or observed the Issuer or the successor entity, as the case may be, shall have delivered to the Trustee an Officer’s Certificate and legal opinion covering these conditions.
(2) the Operating Partnership may consolidate with, or sell, lease or convey all or substantially all of its assets to, or merge with or into, any other entity (whether or not affiliated with the Operating Partnership), or enter into successive consolidations or mergers, provided that the following conditions are met:
(a) the other entity is XX Xxxxx or the Issuer or becomes a guarantor concurrently with the transaction;
(b) (i) either (a) the Operating Partnership shall be the continuing entity or (b) the successor entity formed by or resulting from any consolidation or merger or which shall have received the Companytransfer of assets 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 shall expressly assume all of the obligations of the Operating Partnership under the Guarantee of the Notes; and (2ii) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or leasethe transaction, no Event of Default under the Indenture, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing. Clause ; or
(2c) the transaction constitutes a sale or other disposition (including by way of consolidation or merger) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer Operating Partnership or lease between the sale or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease disposition of all or substantially all of the assets of the Company Operating Partnership (in each case other than to any other Person, in accordance with this Section 5.04XX Xxxxx, the Person formed Issuer or a subsidiary of XX Xxxxx) otherwise permitted by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 2 contracts
Samples: Second Supplemental Indenture (Sl Green Operating Partnership, L.P.), First Supplemental Indenture (Sl Green Operating Partnership, L.P.)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consummate a Division as a Dividing Person, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company’s assets (determined on a consolidated basis for the Company and the Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless Person unless:
(1) either (A) the Company shall be the surviving or continuing Person or the Division Successor, as applicable, (B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the assets of the Company and the Subsidiaries substantially as an entirety (the “Surviving Entity”) (x) shall (A) be incorporated or otherwise a Person organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest and premium, if any, and interest on all of the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to every covenant of the Holders Notes and the Trustee under Indenture on the Indenture or under part of the Notes Company to be performed or observed by observed, or (C) in the Company; and case of a Division, where the Company is the Dividing Person, the Division Successor shall remain or become a co-issuer of the Notes;
(2) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(y) above (including, without limitation, giving effect to 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 or the Surviving Entity shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, conveyanceassignment, transfer or transfer, lease, no Default shall have occurred and be continuing. Clause (2) conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with the applicable provisions of the immediately preceding sentence shall not apply Indenture and that all conditions precedent in the Indenture relating to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizingsuch transaction have been satisfied.
(b) Upon any consolidation For purposes of the Company with foregoing, the transfer (by lease, assignment, sale or merger otherwise, in a single transaction or series of transactions) of all or substantially all of the Company into any other Personassets of one or more Subsidiaries, the Capital Stock of which constitutes all or any salesubstantially all of the assets of the Company, conveyance, shall be deemed to be the transfer or lease of all or substantially all of the assets of the Company Company.
(c) [Reserved].
(d) No Guarantor (other than any Guarantor whose Guarantee is to any other Person, be released in accordance with the terms of the Guarantee and this Section 5.04Supplemental Indenture) will, and the Company will not cause or permit any Guarantor to, consummate a Division as the Dividing Person (whether or not the Company or such Guarantor is the surviving Person), 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 the Company’s assets (determined on a consolidated basis for the Company and the Subsidiaries) whether as an entirety or substantially as an entirety to any Person unless:
(1) either (A) such Guarantor is the surviving Person or the Division Successor, as applicable, or (B) the Division Successor or entity formed by or surviving any such consolidation or into which merger (if other than the Company is merged Guarantor), or to which such sale, conveyanceassignment, transfer or lease is made shall succeed totransfer, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transferother disposition will have been made, but not is a Person organized and validly existing under the laws of the United States or any State thereof or the District of Columbia;
(2) such leaseentity shall expressly assume by supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved performance of and discharged from all obligations and covenants under the Indenture and every covenant of the Notes and may thereupon the Indenture on the part of such Guarantor to be dissolved and liquidated.performed or observed;
(c3) The Trusteeimmediately after giving effect to such transaction, subject no Default or Event of Default shall have occurred and be continuing; and
(4) the Company shall have delivered to the provisions of Sections 10.01 Trustee an Officer’s Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared each in accordance form and substance reasonably satisfactory to the Trustee and stating that such consolidation or merger and, if a supplemental indenture is required in connection with Section 15.01 of the Existing Indenturesuch transaction, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, supplemental indenture complies with the applicable provisions of the IndentureIndenture and that all conditions precedent in the Indenture relating to such transaction have been satisfied.
Appears in 2 contracts
Samples: Eighth Supplemental Indenture (Graphic Packaging Holding Co), Seventh Supplemental Indenture (Graphic Packaging Holding Co)
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 merge into any other Person (whether or not the Company or the Issuers, as applicable, is the surviving or continuing Person), or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of all or substantially all its of the properties and assets of the Company (determined on a consolidated basis for the Company and the Restricted Subsidiaries) or the Issuers, as applicable, to any other PersonPerson (each such event involving the Company, unless a “Company Merger or Sale Event,” and each such event involving the Issuers, an “Issuer Merger or Sale Event”) unless:
(a) either:
(1) except in the case of a consolidation or merger between the Company and the Issuers, the Company, in the case of a Company Merger or Sale Event, or the Issuers, in the case of an Issuer Merger or Sale Event, will be the surviving or continuing Person, or
(2) the Person (if other than the Company or the Issuers, as applicable) formed by such consolidation or into which the Company or the Issuers, as applicable, is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made shall other disposition the properties and assets of the Company and the Restricted Subsidiaries, or of the Issuers, as the case may be, substantially as an entirety (Athe “Surviving Entity”):
(i) will be a corporation, partnership or limited liability company organized or, as the case may be, incorporated or otherwise organized and existing under the laws of the United StatesStates of America, any state thereof or the District of Columbia, and Bermuda, Canada, Switzerland, Japan, any AAA Rated Country or any 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 incorporation; and
(Bii) will expressly assume, by supplemental indentureindenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidationthe Trustee, merger, sale, conveyance, transfer or lease, the due and punctual payment all obligations of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or Issuers under the Notes to be performed and this Indenture, in the case of an Issuer Merger or observed by Sale Event, or all obligations of the Company under the Elan Note Guarantee and this Indenture, in the case of a Company Merger or Sale Event and all obligations of the Issuers or the Company; and , as applicable, under the Registration Rights Agreement;
(2b) immediately after giving effect to such transaction and the assumption contemplated by clause (a)(2)(ii) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or to be Incurred in connection with or in respect of such transaction) and the use of any net proceeds therefrom, 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 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; or
(2) would have a Consolidated Net Fixed Charge Coverage Ratio equal to or greater than the Consolidated Net Fixed Charge Coverage Ratio of the Company immediately prior to such transaction;
(c) immediately after giving effect to such transaction and the assumption contemplated by clause (a)(2)(ii) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or to be Incurred and the use of any net proceeds therefrom and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default will have occurred or be continuing; and
(d) the Company, the Issuers or the 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’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, conveyanceassignment, transfer or transfer, lease, no Default shall 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 such transaction have occurred and be continuingbeen satisfied. Clause (2) For purposes of this Section 4.1, the immediately preceding sentence shall not apply to (X) any sale, conveyanceassignment, transfer transfer, lease, conveyance or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease disposition of all or substantially all of the properties 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 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) and (c) above:
(1) the Company or any other PersonRestricted Subsidiary may merge or consolidate with or into, or sell, assign, transfer, lease, convey or otherwise dispose of all or any part of its properties or assets to, the Company, the Issuers or another Restricted Subsidiary; and
(2) the Company and the Issuers may merge or consolidate with or into, or transfer all of its properties and assets to, an Affiliate of the Company or the Issuers, as the 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 accordance with this Section 5.04, another jurisdiction listed in clause (a)(2)(i) above so long as the Person formed by such consolidation amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. Upon any Company Merger or into Sale Event in which the Company is merged not the surviving or to which such salecontinuing Person, conveyance, transfer or lease is made shall the Surviving Entity will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Indenture Elan Note Guarantee with the same effect as if such successor Person Surviving Entity had been named as such. Upon any Issuer Merger or Sale Event in which none of the Company in Issuers is the Indenturecontinuing Person, the Surviving Entity will succeed to, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notessubstituted for, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such leaseof, the Company (or any successor entity which shall theretofore have become such in the manner described in Issuers under this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trusteewith the same effect as if such Surviving Entity had been named as such. For the avoidance of doubt, subject to compliance with this Section 4.1 will not affect the provisions of Sections 10.01 and 10.02 obligations of the Existing IndentureIssuers under Section 3.16, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indentureif applicable.
Appears in 2 contracts
Samples: Indenture (Elan Corp PLC), Indenture (Elan Corp PLC)
Merger, Consolidation and Sale of Assets. (a) The Company will not consolidate with or merge into any other Person or sell, convey, transfer or lease all or substantially all its assets to any other Person, unless (1) the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall (A) be incorporated or otherwise organized under the laws of the United States, any state thereof or the District of Columbia, and (B) expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, no Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.046.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.046.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 2 contracts
Samples: Fifth Supplemental Indenture (Ecolab Inc.), Second Supplemental Indenture (Ecolab Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not merge, consolidate or amalgamate with or merge into any other Person (other than a merger of a Wholly Owned Subsidiary into the Company) or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all of its assets to Property in any other Person, unless one transaction or series of transactions unless:
(1i) the Company shall be the Surviving Person in such merger, consolidation or amalgamation, or the Surviving Person (if other than the Company) formed by such merger, consolidation or into which the Company is merged amalgamation or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall (A) be incorporated or otherwise a corporation organized and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia, and ;
(Bii) the Surviving Person (if other than the Company) expressly assumeassumes, by supplemental indentureindenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leaseSurviving Person, the due and punctual payment of the principal of and interest of, and premium, if any, on and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under the conditions of this Indenture or under the Notes to be performed or observed by the Company; ;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of the Company, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (2and treating, for purposes of this clause (iv) and clause (v) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person or any Subsidiary of the Company as a result of such transaction or series of transactions as having been Incurred by the Surviving Person or such Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing;
(v) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis, mergerthe Surviving Person shall have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Company immediately prior to such transaction or series of transactions;
(vi) the Company shall deliver, or cause to be delivered, to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction or series of transactions and the supplemental indenture, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied; and
(vii) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders will not recognize income, gain or loss for federal income tax purposes as a result of such transaction and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such transaction had not occurred. The foregoing provisions (other than clause (iv)) shall not apply to any transaction or series of transactions which constitute an Asset Sale if the Company has complied with Section 4.12.
(b) The Company shall not permit any Guarantor to merge, consolidate or amalgamate with or into any other Person (other than a merger of a Wholly Owned Subsidiary into the Company or such Guarantor) or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all its Property in any one transaction or series of transactions unless:
(i) the Surviving Person (if other than such Guarantor) expressly assumes, to the extent permitted by applicable laws, by supplemental indenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Person, the due and punctual performance and observance of all the obligations of such Guarantor under its Guarantee;
(ii) in the case of a sale, conveyancetransfer, transfer or assignment, lease, conveyance or other disposition of all or substantially all the Property of such Guarantor, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iii) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iii) and clause (iv) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person, the Company or any of its Subsidiaries as a result of such transaction or series of transactions as having been Incurred by the Surviving Person, the Company or such Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ;
(2iv) immediately after giving effect to such transaction or series of the immediately preceding sentence shall not apply to (X) any saletransactions on a pro forma basis, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of shall have a Consolidated Net Worth in an amount which is not less than the Company, (Y) any merger Consolidated Net Worth of the Company into any Subsidiary immediately prior to such transaction or series of transactions;
(v) the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Personshall deliver, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted cause to be done by delivered, to the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 an Officers’ Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared each stating that such transaction or series of transactions and the supplemental indenture, if any, in accordance respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied; and
(vi) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders will not recognize income, gain or loss for federal income tax purposes as a result of such transaction and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such transaction had not occurred. The foregoing provisions (other than clause (iii)) shall not apply to any transaction or series of transactions which constitute an Asset Sale if the Company has complied with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture4.12.
Appears in 2 contracts
Samples: Indenture (American Dairy Inc), Indenture (American Dairy Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or a series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company's assets (determined on a consolidated basis for the Company and its assets Restricted Subsidiaries), whether as an entirety or substantially as an entirety to any other Person, unless Person unless:
(i) either (1) the Company shall be the surviving or continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to which such the Person that acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Company's Restricted Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise an entity organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under every cove- nant of the Notes and this Indenture on the part of the Company to be performed or observed by the Company; and observed;
(2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), 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 4.12;
(iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and
(iv) the Company 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, conveyanceassignment, transfer or transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supple mental indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
(b) For purposes of this Section 5.01, 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 and assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties or assets of the Company, will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(c) 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 4.15) 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 assumes by supplemental indenture all of the obligations of the Guarantor on its Guarantee; (ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Clause ; and (2iii) 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 immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer first paragraph of this Section 5.01. Any merger or lease between or among consolidation of a Guarantor with and into the Company and one (with the Company being the surviving entity) or more Subsidiaries of another Guarantor need not comply with clause (a) above. Notwithstanding anything in this Section 5.01 to the Companycontrary, (Ya) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into may merge with an Affiliate of the Company that has no material assets or liabilities and that is incorporated or organized solely for the purpose of reincorporating or reorganizing the Company reincorporating in another state of the United States or reorganizing.
the District of Columbia to realize tax benefits without complying with clause (ii) of the first paragraph of this covenant and (b) Upon any consolidation transaction characterized as a merger under applicable state law where each of the Company with or 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 the transfer of assets by the Company into any other Personor a Restricted Subsidiary, or any sale(y) an Investment, conveyance, transfer or lease if the result of all or substantially all such transaction is the acquisition of the assets of by the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedRestricted Subsidiary.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 2 contracts
Samples: Indenture (Huntsman Texas Holdings LLC), Indenture (Huntsman Texas Holdings LLC)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of all or substantially all its of the Company’s properties and assets determined on a consolidated basis (other than sales, assignments, transfers, leases, conveyances or other dispositions of securities or assets, in each case in the ordinary course of business) to any other Person, unless unless:
(1) either
(A) the Company shall be the surviving or continuing Person; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition all or substantially all of the Company’s properties and assets (the “Surviving Entity”):
(i) shall (A) be incorporated or otherwise an entity organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, and ; and
(Bii) shall expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under every covenant in the Notes and this Indenture on the part of the Company to be performed or observed by the Company; and observed;
(2) immediately after giving effect to such consolidationtransaction and, mergerif applicable, salethe assumption contemplated by Section 5.01(a)(1)(B)(ii) above (including giving pro forma effect to any Indebtedness and Acquired Indebtedness incurred and any repayment, conveyancerepurchase, transfer defeasance, redemption or leaseother discharge of Indebtedness by the Company or the Surviving Entity, as the case may be, or any of their respective Subsidiaries in connection with such transaction), the Company or such Surviving Entity, as the case may be, is in Pro Forma Covenant Compliance;
(3) immediately after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation of the 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 the Company or the Surviving Entity, 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 Company or the Surviving Entity 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. Clause ;
(24) of if the immediately preceding sentence shall Surviving Entity is not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, each Guarantor (Yunless it is the Surviving Entity, in which case Section 5.01(a)(1)(B) any merger above shall apply) shall have by supplemental indenture confirmed that its Guarantee of the Notes shall apply to such Surviving Entity’s obligations under this Indenture and the Notes; and
(5) the Company into or the Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel (which Opinion of Counsel 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.
(b) Notwithstanding the provisions of Section 5.01(a), any Subsidiary of the Company may merge or (Z) consolidate with or into or transfer all or any merger part of its properties and assets to the Company or the Surviving Entity or any other Subsidiary of the Company into an Affiliate of or the Company for the purpose of the Company reincorporating or reorganizing.
(bSurviving Entity and Section 5.01(a) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafterand, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of merger or consolidation with or into the Company under or the IndentureSurviving Entity, in the name of the CompanySection 5.01(e), or in its own name; and any act or proceeding by any provision of the Indenture required or permitted shall not apply to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedtransaction.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (FS Energy & Power Fund)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of all or substantially all its of the Company’s properties and assets determined on a consolidated basis (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 ordinary course of business) to any other Person, unless unless:
(1) either
(A) the Company shall be the surviving or continuing Person; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition all or substantially all of the Company’s properties and assets (the “Surviving Entity”):
(i) shall (A) be incorporated or otherwise an entity organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, and ; and
(Bii) shall expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under every covenant in the Notes and this Indenture on the part of the Company to be performed or observed by the Company; and observed;
(2) immediately after giving effect to such consolidationtransaction and, mergerif applicable, salethe assumption contemplated by Section 5.01(a)(1)(B)(ii) above (including giving pro forma effect to any Indebtedness and Acquired Indebtedness incurred and any repayment, conveyancerepurchase, transfer defeasance, redemption or leaseother discharge of Indebtedness by the Company or the Surviving Entity, as the case may be, 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 at least $1.00 of additional Indebtedness pursuant to Section 4.07(b); or (c) shall have a Consolidated Fixed Charge Coverage Ratio that is equal to or greater than the Consolidated Fixed Charge Coverage Ratio of the Company immediately prior to such transaction (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 after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation of the 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 the Company or the Surviving Entity, 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 Company or the Surviving Entity 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. Clause ;
(24) of if the immediately preceding sentence shall Surviving Entity is not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, each Guarantor (Yunless it is the Surviving Entity, in which case Section 5.01(a)(1)(B) any merger above shall apply) shall have by supplemental indenture confirmed that its Guarantee of the Notes shall apply to such Surviving Entity’s obligations under this Indenture and the Notes; and
(5) the Company into or the Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel (which Opinion of Counsel 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.
(b) Notwithstanding the provisions of Section 5.01(a), any Subsidiary of the Company may merge or (Z) consolidate with or into or transfer all or any merger part of its properties and assets to the Company or the Surviving Entity or any other Subsidiary of the Company into an Affiliate of or the Company for the purpose of the Company reincorporating or reorganizing.
(bSurviving Entity and Section 5.01(a) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafterand, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of merger or consolidation with or into the Company under or the IndentureSurviving Entity, in the name of the CompanySection 5.01(f), or in its own name; and any act or proceeding by any provision of the Indenture required or permitted shall not apply to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedtransaction.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will shall not merge or consolidate with or merge into any other Person (other than a merger of a Wholly Owned Subsidiary into the Company) or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all of its assets to Property in any other Person, unless one transaction or series of transactions unless:
(1i) the Company shall be the Surviving Person in such merger or consolidation or the Surviving Person (if other than the Company) formed by such merger or consolidation or into which the Company is merged or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall (A) be incorporated or otherwise a corporation organized and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia, and Columbia or the Cayman Islands;
(Bii) the Surviving Person (if other than the Company) expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, assumes the due and punctual payment of the principal of of, Additional Amounts and interest and premiumon, if any, on all the NotesNote, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under the Indenture or under the Notes conditions of this Agreement to be performed or observed by the Company; ;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all of the Property of the Company, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (2and treating, for purposes of this clause (iv) and clause (v) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person or any Subsidiary of the Company as a result of such transaction or series of transactions as having been Incurred by the Surviving Person or such Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing;
(v) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis:
(A) the Company or the Surviving Person, mergeras the case may be, would be in compliance with the Minimum Consolidated Interest Expense Coverage Ratio; and
(B) the Company or the Surviving Person, as the case may be, would have a Consolidated Interest Expense Coverage Ratio that is not lower than the Consolidated Interest Expense Coverage Ratio of the Company immediately prior to such transaction; immediately after giving effect to such transaction or series of transactions on a pro forma basis, the Surviving Person shall have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Company immediately prior to such transaction or series of transactions. The foregoing provisions (other than clause (iii)) shall not apply to any transaction or series of transactions which constitute an Asset Sale if the Company has complied with Section 8.11.
(b) The Company shall not permit any Guarantor to merge or consolidate with or into any other Person (other than a merger of a Wholly Owned Subsidiary into the Company or such Guarantor) or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all its Property in any one transaction or series of transactions unless:
(i) the Surviving Person (if not such Guarantor) formed by such merger or consolidation or to which such sale, conveyancetransfer, transfer or assignment, lease, conveyance or disposition is made shall be a corporation, company (including a limited liability company) or partnership organized and existing under the laws of the United States of America, any State thereof or the District of Columbia or the Cayman Islands;
(ii) the Surviving Person (if other than such Guarantor) expressly assumes the due and punctual performance and observance of all the obligations of such Guarantor under its Guaranty;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or a substantial part of all the Property of such Guarantor, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iv) and clause (v) and (vi) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person, the Company or any of its Subsidiaries as a result of such transaction or series of transactions as having been Incurred by the Surviving Person, the Company or such Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ;
(2v) immediately after giving effect to such transaction or series of transactions on a pro forma basis:
(A) the Company would be in compliance with the Minimum Consolidated Interest Expense Coverage Ratio, and
(B) the Company would have a Consolidated Interest Expense Coverage Ratio which is not lower than the Consolidated Interest Expense Coverage Ratio of the Company immediately preceding sentence prior to such transaction; and
(vi) immediately after giving effect to such transaction or series of transactions on a pro forma basis, the Company shall have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Company immediately prior to such transaction or series of transactions. The foregoing provisions (other than clause (iii)) shall not apply to (X) any sale, conveyance, transfer transaction or lease between or among series of transactions which constitute an Asset Sale if the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance has complied with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture8.11.
Appears in 1 contract
Samples: Securities Purchase Agreement (Xinyuan Real Estate Co., Ltd.)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company's assets (determined on a consolidated basis for the Company and the Company's Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless Person unless: (i) either (1) the Company shall be the surviving or continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and the Company's Restricted Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureinden- ture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest and of, premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes, according to their tenor, this Indenture and the due and punctual performance and observance Registration Rights Agreement on the part of all other obligations to the Holders and the Trustee under the Indenture or under the Notes Company to be performed or observed by the Companyobserved; and (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Company or such Surviving Entity, as the case may be, (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 at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12 hereof; (iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and (iv) the Company 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, conveyanceassignment, transfer or 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.
(b) For purposes of the 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, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(c) 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 4.16 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 another Guarantor unless: (a) the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) or the entity 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; (b) such entity assumes by supplemental indenture all of the obligations of the Guarantor under its Guarantee; (c) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Clause ; and (2d) 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 immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer first paragraph of this Section 5.01. Any merger or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company a Guarantor with or merger of the Company and into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (with the Company being the surviving entity) or any successor entity which shall theretofore have become such in the manner described in another Guarantor that is a Wholly Owned Restricted Subsidiary need only comply with clause (iv) of paragraph (a) of this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated5.01.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (T Sf Communications Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not No Guarantor shall consolidate with or merge with or into any other Person or, directly or indirectly, sell, conveylease, transfer assign, transfer, or lease convey all or substantially all of its assets (computed on a consolidated basis), to any other Personanother Person or group of Persons acting in concert, whether in a single transaction or through a series of related transactions, unless (1i) either (a) the Guarantor is the continuing Person formed by such consolidation or into which (b) the Company resulting, surviving, or transferee entity is merged or to which such sale, conveyance, transfer or lease is made shall (A) be incorporated or otherwise a corporation organized under the laws of the United States, any state thereof thereof, or the District of Columbia, and shall expressly assume all of the obligations of the Guarantor under this Indenture, the Guarantees and the Security Documents by appropriate documents supplemental hereto and thereto, executed and delivered to the Trustee on or prior to the consummation of such transaction, in form satisfactory to the Trustee and in either such case the priority of the Liens created by this Indenture and the Security Documents in the Collateral are unaffected; (Bii) no Default or Event of Default shall exist or shall occur immediately after giving effect to such transaction; and (iii) immediately after giving effect to such transaction on a pro forma basis, the Net Worth of the resulting, surviving or transferee entity is at least equal to the Net Worth of the Guarantor immediately prior to such transaction. The Issuer shall not consolidate with or merge with or into any other Person, or, directly or indirectly, sell, lease, assign, transfer, or convey all or substantially all of its assets (computed on a consolidated basis), to another Person or group of Persons acting in concert, whether in a single transaction or through a series of related transactions, unless (i) either (a) the Issuer is the continuing Person or (b) the resulting, surviving, or transferee entity is a corporation organized under the laws of the United States, any state thereof, or the District of Columbia, and shall expressly assume, assume all of the obligations of the Issuer under this Indenture and the Senior Notes by a supplemental indenture, executed and delivered by such Person to the Trustee on or prior to the consummation of such transaction, in form satisfactory to the Trustee and in either such case the priority of the Liens created by this Indenture and the Security Documents in the Collateral are unaffected; (ii) no Default or simultaneously Event of Default shall exist or shall occur immediately after giving effect to such transaction; (iii) immediately after giving effect to such transaction on a pro forma basis, the Net Worth of the resulting, surviving or transferee entity is at least equal to the Net Worth of the Issuer immediately prior to such transaction; (iv) except for a consolidation or merger of the Issuer with or into any Wholly-Owned Subsidiary, the resulting, surviving or transferee entity would immediately thereafter be permitted to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12(a); (v) each Guarantor shall have executed and delivered to the Trustee, in form satisfactory to the Trustee, a supplemental indenture confirming its obligation to pay the principal of, premium, if any, and interest on the Senior Notes pursuant to their respective Guarantees and to perform all their respective covenants hereunder and under the Guarantees; (vi) the Trustee shall have received an Opinion of Counsel to the effect that such consolidation, merger, sale, assignment, conveyance, transfer or lease will not result in the Issuer being required to make any deduction for or on account of taxes from payments made under or in respect of the Senior Notes. For purposes of this Section 5.01, the Consolidated Fixed Charge Coverage Ratio shall be determined on a pro forma consolidated basis (giving effect to the transaction) for the Reference Period immediately preceding such transaction. The Issuer shall not permit or allow any Subsidiary to consolidate with or merge with or into any other Person or, directly or indirectly, sell, lease, assign, transfer, or convey all or substantially all of its assets (computed on a consolidated basis), to another Person or group of Persons acting in concert, whether in a single transaction or through a series of related transactions, unless (i) the due Person formed by or surviving any such consolidation or merger (if other than such Subsidiary) or the transferee entity (A) is a corporation organized and punctual payment existing under the laws of the principal United States, any state thereof, or the District of Columbia and interest and premium, if any, on (B) expressly assumes all the Notesobligations of such Subsidiary pursuant to a supplemental indenture, according to their tenor, and the due and punctual performance and observance of all other obligations in a form satisfactory to the Holders and the Trustee Trustee, under the Indenture Senior Notes and this Indenture, (ii) immediately before and after giving effect to such transaction, no Default or under the Notes to be performed or observed by the Company; Event of Default exists and (2) immediately after giving effect to such transaction, the resulting, surviving or transferee entity could incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12(a), and (iii) such Subsidiary or the Person formed by or surviving any such consolidation or merger or the transferee entity on a pro forma basis will have Net Worth (immediately after the transaction) equal to or greater than the Net Worth of such Subsidiary immediately preceding the transaction; provided that, the foregoing shall not apply to a merger, consolidation, sale or other such transaction between Subsidiaries and between the Issuer and any Subsidiary. In connection with any consolidation, merger, sale, conveyancelease, assignment, transfer or lease, no Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company conveyance that is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 this Section 5.01, the Issuer shall deliver to the Trustee, in form and 10.02 of substance satisfactory to the Existing IndentureTrustee, may receive an Officers' Certificate and an Opinion of Counsel, prepared in accordance with Section 15.01 of each stating that such transaction, the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, supplemental indenture and any other supplemental document delivered pursuant to this Section 5.01 comply with this Section 5.01 and that all conditions precedent in this Indenture provided for in relation to such assumption, complies with the applicable provisions of the Indenturetransaction have been complied with.
Appears in 1 contract
Samples: Indenture (Southwest Royalties Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not shall not, in any transaction or series of related transactions, merge or consolidate with or merge into, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets to, any Person or Persons, and the Company shall not permit any Restricted Subsidiary to enter into any such transaction or series of transactions if such transaction or series of transactions, in the aggregate, would result in a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the properties and assets of the Company or of the Company and its Subsidiaries on a consolidated basis to any other Person or sell, convey, transfer or lease all or substantially all its assets to any other PersonPersons, unless at the time of and immediately after giving effect thereto (1i) either (A) if the transaction or transactions is a merger or consolidation, the Company shall be the surviving Person of such merger or consolidation, or (B) the Person formed by such consolidation or into which the Company or such Restricted Subsidiary is merged or to which the properties and assets of the Company or such saleRestricted Subsidiary, conveyanceas the case may be, transfer or lease is made shall (A) be incorporated substantially as an entirety, are sold, assigned, transferred, leased or otherwise disposed of (any such surviving Person or transferee Person being the "Surviving Entity") shall be a corporation organized and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia, Columbia and (B) shall expressly assume, assume by a supplemental indenture, indenture executed and delivered by to the Trustee, in form and substance satisfactory to the Trustee, all the obligations of the Company under the Notes and this Indenture, and in each case, this Indenture shall remain in full force and effect; and (ii) immediately after giving effect to such Person prior transaction or series of related transactions on a pro forma basis (including, without limitation, any Indebtedness Incurred or anticipated to be Incurred in connection with or in respect of such transaction or series of transactions), (x) no Default or Event of Default shall have occurred and be continuing and (y) the Company or the Surviving Entity, as the case may be, could Incur $1.00 of additional Indebtedness pursuant to Section 4.08(a); provided that this Section 5.01(a) shall not apply to or simultaneously restrict the Merger. In connection with any consolidation, merger, sale, assignment, conveyance, transfer, lease or other disposition contemplated hereby, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect to such consolidation, merger, saleassignment, conveyance, transfer transfer, lease or leaseother disposition and the supplemental indenture in respect thereof comply with the requirements under this Indenture. In addition, no Default shall have occurred each Note Guarantor, unless it is the other party to the transaction or unless its Note Guarantee will be released and be continuing. Clause (2) discharged in accordance with its terms as a result of the immediately preceding sentence shall not transaction, will be required to confirm, by supplemental indenture, that its Note Guarantee will apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary obligations of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizingSurviving Entity under this Indenture.
(b) Upon any consolidation The Company agrees, as soon as possible, to cause the Merger to be consummated and the First Supplemental Indenture to be executed. Concurrently with the execution and delivery of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power ofFirst Supplemental Indenture, the Company under shall deliver to the Indenture with Trustee an Opinion of Counsel in form and substance satisfactory to the same effect as if Trustee stating that such successor Person had supplemental indenture has been named as the Company in the Indentureduly authorized, executed and thereafterdelivered by Xxxxxxx-Xxxxxx, except in the case of a lease, the predecessor Company shall be relieved of Inc. and discharged from all obligations Holding and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trusteethat, subject to the provisions applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance, reorganization, moratorium and other laws now or hereafter in effect affecting creditors' rights generally and the general principles of Sections 10.01 equity (including, without limitation, standards of materiality, good faith, fair dealing and 10.02 reasonableness), such supplemental indenture is a valid and legally binding agreement of the Existing IndentureXxxxxxx-Xxxxxx, may receive an Opinion of CounselInc. and Holding, prepared enforceable against such parties in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indentureits terms.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person (whether or not the Company is the surviving or continuing Person), or sell, conveyassign, transfer transfer, convey or lease 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 assets Restricted Subsidiaries taken as a whole (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any other Person, unless 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 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, 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), 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 (2) 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 satisfied. 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 Section 4.1(a)(2) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to a 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 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 sale, conveyance, lease or transfer or lease is made shall (A) be incorporated or otherwise organized under the laws of the United States, any state thereof or the District of Columbia, and (B) expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, no Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Indenture Notes with the same effect as if such successor Person Successor Company had been named as such. For the Company in avoidance of doubt, compliance with this Section 4.1 will not affect the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power Obligations of the Company under the Indenture, in the name of the (including a Successor Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such saleif applicable) under Section 3.21, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedif applicable.
(cd) The Trustee, subject Notwithstanding anything to the provisions 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 Sections 10.01 and 10.02 of the Existing Indentureits or their respective properties or assets considered as one enterprise, may receive an Opinion of Counselin one or more related transactions, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that to any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indentureother Person.
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Samples: Indenture (MDC Partners Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not consolidate with or merge with or into (whether or not the Company is the Surviving Person) any other Person entity and the Company shall not, and shall not cause or permit any Restricted Subsidiary to, sell, convey, transfer assign, transfer, lease or lease otherwise dispose of all or substantially all its of the Company’s and the Restricted Subsidiaries’ properties and assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) to any other PersonPerson in a single transaction or series of related transactions, unless unless:
(1) the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall either (A) the Company shall be incorporated the Surviving Person or otherwise (B) the Surviving Person (if other than the Company) shall be a corporation or limited liability company organized and validly existing under the laws of the United States, States of America or any state State thereof or the District of Columbia, and (B) shall, in any such case, expressly assume, assume by a supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and of, premium, if any, and interest on all the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders every covenant of this Indenture and the Trustee under the Indenture or under the Notes Registration Rights Agreement to be performed or observed by on the part of the Company; and .
(2) immediately thereafter, on & pro forma basis after giving effect to such consolidation, merger, sale, conveyance, transfer transaction (and treating any Indebtedness not previously an obligation of the Company or leaseany Restricted Subsidiary in connection with or as a result of such transaction as having been Incurred at the time of such transaction), no Default or Event of Default shall have occurred and be continuing. Clause ;
(23) of immediately after giving effect to any such transaction including the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among Incurrence by the Company or any Restricted Subsidiary, directly or indirectly, of additional Indebtedness (and one or more Subsidiaries of the Company, (Y) treating any merger of the Company into any Subsidiary Indebtedness not previously an obligation of the Company or any Restricted Subsidiary in connection with or as a result of such transaction as having been Incurred at the time of such transaction), either (Za) the Surviving Person could Incur, on & pro forma basis after giving effect to such transaction, at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) under the Consolidated Leverage Ratio under Section 4.10 or (b) the Consolidated Leverage Ratio would be lower than it is prior to giving effect to such transaction; and
(4) the Company 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 this Indenture. Notwithstanding Section 5.01(a)(3), (1) any merger Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company into or another Restricted Subsidiary and (2) the Company may merge with an Affiliate of the Company that has no significant assets or liabilities and was formed solely for the purpose of changing the Company’s jurisdiction of organization to another state of the United States, provided that the surviving entity assumes, by supplemental indenture in form reasonably satisfactory to the Trustee, the Company’s obligations under this Indenture and the Registration Rights Agreement. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all the properties and assets of one or more Restricted Subsidiaries the Capital Stock of which constitute all or substantially all the properties and assets of the Company reincorporating shall be deemed to be the transfer of all or reorganizingsubstantially all the properties and assets of the Company.
(b) Upon In connection with any consolidation of the Company with consolidation, merger, transfer, lease or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power ofdisposition contemplated hereby, the Company under shall deliver, or cause to be delivered, to the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the IndentureTrustee, in form and substance reasonably satisfactory to the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 an Officers’ Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indentureeach stating that such consolidation, as conclusive evidence that any such merger, saletransfer, conveyance lease or lease, other disposition and any such assumption, complies the supplemental indenture in respect thereof comply with the applicable provisions of the requirements under this Indenture.
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Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveytransfer, transfer or lease otherwise dispose of (or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company’s assets to any other Person, unless (1determined on a consolidated basis for the Company and the Company’s Restricted Subsidiaries) unless:
(i) either (A) the Company shall be the surviving or continuing entity or (B) the Person (if other than the Company) formed by such consolidation or into which the Company merger is merged or to which such sale, conveyance, transfer or lease is made shall (A) be incorporated or otherwise an entity organized and validly existing under the laws of the United States, any state thereof or State thereof, the District of Columbia, and (B) expressly assume, by supplemental indenture, executed and delivered by such Person prior to Columbia or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment any state which was a member state of the principal of and interest and premiumEuropean Union on December 31, 2003 or Canada or any province thereof (the “Surviving Entity”);
(ii) the Surviving Entity, if any, on all the Notes, according to their tenor, expressly assumes by a joinder or other agreement in form and the due and punctual performance and observance of all other obligations substance reasonably satisfactory to the Holders Administrative Agent all rights and obligations of the Trustee Company under the Indenture or under the Notes Loan Document to be performed or observed by the Company; and which it is a party;
(2iii) immediately after giving effect to such consolidationtransaction, mergerincluding the assumption of the Loans, (I) the Company or the Surviving Entity is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 5.08(b) hereof (assuming for this purpose that the Extension Date has occurred) or (II) the Fixed Charge Coverage Ratio at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period will be equal to or greater than it was immediately before such transaction;
(iv) immediately before and after giving effect to such transaction, including the assumption of the Loans, no Default or Event of Default occurred or exists; and
(v) the Company or the Surviving Entity shall have delivered to the Lenders an officers’ certificate and an opinion of counsel, stating that all requirements under this Agreement for such a transaction have been satisfied, it being understood that such opinion of counsel may rely as to certain matters of fact on such officer’s certificate.
(b) Each Guarantor (other than any guarantor whose guarantee is to be released in accordance with the terms of this Agreement in connection with any transaction complying with the provisions of Section 5.11 will not, and the Company will not cause or permit any other Guarantor to, consolidate with or merge with or into any Person other than Borrower 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, conveyance, transfer or lease, conveyance or other disposition shall have been made assumes by Accession Letter all of the obligations of the Guarantor on the guarantee;
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(iii) either (I) at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, the Company will be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth under Section 5.08(b) (assuming for this purpose that the Extension Date has occurred)or (II) the Consolidated Fixed Charge Coverage Ratio at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period will be equal to or greater than it was immediately before such transaction. Clause Any merger or consolidation of a Guarantor with and into Borrower (2with Borrower being the surviving entity) or another Guarantor need not comply with paragraph (a) of this Section 5.19.
(c) Notwithstanding anything in this section to the immediately preceding sentence shall not apply to contrary,
(Xi) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or Borrower may (ZA) any merger of the Company into merge with an Affiliate of the Company that has no material assets or liabilities and that is incorporated or organized solely for the purpose of reincorporating or reorganizing the Company reincorporating or reorganizing.Borrower, as the case may be, in any state of the United States, the District of Columbia or any state which was a member state of the European Union on December 31, 2003 and (B) may otherwise convert its legal form under the laws of its jurisdiction of organization, in each case, without complying with clause (iii) of the first paragraph of this covenant;
(bii) Upon any consolidation transaction characterized as a merger under applicable law where each of the Company with or constituent entities survives, will not be treated as a merger for purposes of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.045.19, but instead will be treated as
(A) an Asset Sale, if the Person formed result of such transaction is the transfer of assets by such consolidation the Company, Borrower or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name another Restricted Subsidiary of the Company, or in its own name; and any act (B) an Investment, if the result of such transaction is the acquisition of assets by the Company, Borrower or proceeding by any provision another Restricted Subsidiary of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.Company,
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveytransfer, transfer or lease otherwise dispose of (or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Companys assets to any other Person, unless (1determined on a consolidated basis for the Company and the Companys Restricted Subsidiaries) unless:
(i) either (A) the Company shall be the surviving or continuing entity or (B) the Person (if other than the Company) formed by such consolidation or into which the Company merger is merged or to which such sale, conveyance, transfer or lease is made shall (A) be incorporated or otherwise an entity organized and validly existing under the laws of the United States, any state thereof or State thereof, the District of Columbia, and (B) expressly assume, by supplemental indenture, executed and delivered by such Person prior to Columbia or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment any state which was a member state of the principal of and interest and premiumEuropean Union on December 31, 2003 or Canada or any province thereof (the Surviving Entity);
(ii) the Surviving Entity, if any, on all the Notes, according to their tenor, expressly assumes by a joinder or other agreement in form and the due and punctual performance and observance of all other obligations substance reasonably satisfactory to the Holders Administrative Agent all rights and obligations of the Trustee Company under the Indenture or under the Notes Loan Document to be performed or observed by the Company; and which it is a party;
(2iii) immediately after giving effect to such consolidationtransaction, mergerincluding the assumption of the Loans, (I) the Company or the Surviving Entity is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 5.08(b) hereof (assuming for this purpose that the Extension Date has occurred) or (II) the Fixed Charge Coverage Ratio at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period will be equal to or greater than it was immediately before such transaction;
(iv) immediately before and after giving effect to such transaction, including the assumption of the Loans, no Default or Event of Default occurred or exists; and
(v) the Company or the Surviving Entity shall have delivered to the Lenders an officers certificate and an opinion of counsel, stating that all requirements under this Agreement for such a transaction have been satisfied, it being understood that such opinion of counsel may rely as to certain matters of fact on such officers certificate.
(b) Each Guarantor (other than any guarantor whose guarantee is to be released in accordance with the terms of this Agreement in connection with any transaction complying with the provisions of Section 5.11 will not, and the Company will not cause or permit any other Guarantor to, consolidate with or merge with or into any Person other than Borrower 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, conveyance, transfer or lease, conveyance or other disposition shall have been made assumes by Accession Letter all of the obligations of the Guarantor on the guarantee;
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Clause ; and
(2iii) either (I) at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power ofapplicable four-quarter period, the Company will be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth under Section 5.08(b) (assuming for this purpose that the Indenture with Extension Date has occurred)or (II) the same Consolidated Fixed Charge Coverage Ratio at the time of such transaction and after giving pro forma effect thereto as if such successor Person transaction had been named as occurred at the Company in beginning of the Indenture, and thereafter, except in the case applicable four-quarter period will be equal to or greater than it was immediately before such transaction. Any merger or consolidation of a lease, Guarantor with and into Borrower (with Borrower being the predecessor Company shall be relieved surviving entity) or another Guarantor need not comply with paragraph (a) of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated5.19.
(c) The Trustee, subject Notwithstanding anything in this section to the provisions contrary,
(i) the Company or Borrower may (A) merge with an Affiliate that has no material assets or liabilities and that is incorporated or organized solely for the purpose of Sections 10.01 and 10.02 reincorporating or reorganizing the Company or Borrower, as the case may be, in any state of the Existing IndentureUnited States, may receive an Opinion the District of Counsel, prepared in accordance with Section 15.01 Columbia or any state which was a member state of the Existing IndentureEuropean Union on December 31, as conclusive evidence that any such merger2003 and (B) may otherwise convert its legal form under the laws of its jurisdiction of organization, salein each case, conveyance or lease, and any such assumption, complies without complying with the applicable provisions clause (iii) of the Indenturefirst paragraph of this covenant;
(ii) any transaction characterized as a merger under applicable law where each of the constituent entities survives, will not be treated as a merger for purposes of this Section 5.19, but instead will be treated as
(A) an Asset Sale, if the result of such transaction is the transfer of assets by the Company, Borrower or another Restricted Subsidiary of the Company, or
(B) an Investment, if the result of such transaction is the acquisition of assets by the Company, Borrower or another Restricted Subsidiary of the Company,
(C) neither Millennium Chemicals Inc. nor Millennium Holdings LLC nor any of their respective subsidiaries as of the Closing Date may be merged with or into the Company or any other Restricted Subsidiary of the Company (other than with or into Millennium Holdings LLC or any of its other subsidiaries as of the Closing Date).
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will shall not merge, consolidate or amalgamate with or merge into any other Person (other than a merger of a Restricted Subsidiary into the Company) or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all its assets to Property in any other Person, unless one transaction or series of transactions unless:
(1a) the Company shall be the surviving Person (the "SURVIVING PERSON") or the Surviving Person (if other than the Company) formed by such merger, consolidation or into which the Company is merged amalgamation or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall (A) be incorporated or otherwise a corporation organized and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia, and ;
(Bb) the Surviving Person (if other than the Company) expressly assumeassumes, by supplemental indentureindenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leaseSurviving Person, the due and punctual payment of the principal of and interest of, and premium, if any, on and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under conditions of the Indenture or under the Notes to be performed or observed by the Company; ;
(c) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of the Company, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(d) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis no Default or Event of Default shall have occurred and be continuing;
(2e) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis, the Company or the Surviving Person, as the case may be, would be able to Incur at least $1.00 of additional Debt under clause (a) of Section 4.09 hereof or, after giving effect to such incurrence, the Consolidated Interest Coverage Ratio of the Company or the Surviving Person, as the case may be, would be the same or better than such ratio immediately prior to giving effect to transaction or series of transactions; and
(f) the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such transaction and the supplemental indenture, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction have been satisfied. The Company shall not permit any Subsidiary Guarantor to merge, consolidate or amalgamate with or into any other Person (other than a merger of a Restricted Subsidiary into the Subsidiary Guarantor) or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all its Property in any one transaction or series of transactions unless:
(a) the surviving Person (if other than the Subsidiary Guarantor) formed by such merger, consolidation or amalgamation or to which such sale, conveyancetransfer, transfer or assignment, lease, conveyance or disposition is made shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia;
(b) the Surviving Person (if other than the Subsidiary Guarantor) expressly assumes, by supplemental indenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Person, the due and punctual payment of the principal of, and premium, if any, and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee;
(c) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of such Subsidiary Guarantor, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(d) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (d), any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person, the Company or any Restricted Subsidiary as a result of such transaction or series of transactions as having been Incurred by the Surviving Person, the Company or such Restricted Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ;
(2e) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Personshall deliver, or any salecause to be delivered, conveyance, transfer or lease of all or substantially all of to the assets of the Company to any other PersonTrustee, in accordance with this Section 5.04, form and substance reasonably satisfactory to the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 an Officers' Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared each stating that such transaction and such Subsidiary Guarantee, if any, in accordance respect thereto comply with Section 15.01 of the Existing Indenture, as conclusive evidence this covenant and that any all conditions precedent herein provided for relating to such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenturetransaction have been satisfied.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not consolidate Neither any Guarantor nor any Issuer will, in a single transaction or through a series of transactions, consolidate, amalgamate or merge with or merge into any other Person or sell, assign, convey, transfer transfer, lease or lease otherwise dispose of, or take any action pursuant to any resolution passed by the Board of Directors thereof or its equity holders with respect to a demerger or division pursuant to which such Guarantor or such Issuer would dispose of, all or substantially all its of the properties and assets of such Guarantor or such Issuer to any other PersonPerson or Persons, unless (1) and neither any Guarantor nor any Issuer shall permit any Restricted Subsidiary to enter into any such transaction or series of transactions if such transaction or series of transactions, in the Person formed by such consolidation or into which aggregate, would result in the Company is merged or to which such sale, assignment, conveyance, transfer transfer, lease or lease is made shall (A) be incorporated or otherwise organized under the laws of the United States, any state thereof or the District of Columbia, and (B) expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, no Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease disposition of all or substantially all of the properties and assets of the Company such Guarantor or such Issuer, as applicable, and its respective Restricted Subsidiaries on a consolidated basis to any other PersonPerson or Persons. The foregoing paragraph shall not apply if:
(1) at the time of, in accordance with this Section 5.04and immediately after giving effect to, any such transaction or series of transactions, such Guarantor or such Issuer, as applicable, will be the continuing Person or the Person (if other than such Guarantor or such Issuer) formed by or surviving any such consolidation consolidation, amalgamation or into which the Company is merged merger or to which such sale, assignment, conveyance, transfer transfer, lease or lease is made shall succeed todisposition of all or substantially all the properties and assets of such Guarantor or such Issuer, as applicable, and be substituted for, and may exercise every right and power of, its respective Restricted Subsidiaries on a consolidated basis has been made (the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.“Surviving Entity”):
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will shall not merge or consolidate with or merge into any other Person entity (other than a merger of a wholly owned Restricted Subsidiary into the Company) or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all of its assets to Property in any other Person, unless one transaction or series of transactions unless: (1a) the Person entity formed by or surviving any such consolidation or into which merger (if the Company is merged not the surviving entity) or the Person to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease other disposition is made (the "Surviving Entity") shall (A) be incorporated or otherwise a corporation organized and existing under the laws of the United States, any state States of America or a State thereof or the District of Columbia, Columbia and (B) such corporation expressly assumeassumes, by supplemental indentureindenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasecorporation, the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under the conditions of this Indenture or under the Notes to be performed or observed by the Company; (b) immediately before and after giving effect to such transaction or series of transactions, no Default or Event of Default shall have occurred and be continuing; (2c) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis (including, mergerwithout limitation, saleany Indebtedness Incurred or anticipated to be Incurred in connection with such transaction or series of transactions), conveyancethe Company or the Surviving Entity, transfer or leaseas the case may be, no Default shall have occurred and would be continuing. Clause able to Incur at least $1.00 of additional Indebtedness under clause (2a) of the immediately preceding sentence shall not apply to first paragraph of Section 4.11, and (Xd) any in the case of a sale, conveyancetransfer, transfer assignment, lease, conveyance or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease disposition of all or substantially all of the assets of the Company Company's Property, such Property shall have been transferred as an entirety or virtually as an entirety to one Person. In connection with any other Personconsolidation, in accordance with merger or transfer contemplated by this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of5.01, the Company under shall deliver, or cause to be delivered, to the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the IndentureTrustee, in form and substance reasonably satisfactory to the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 an Officers' Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indentureeach stating that such consolidation, as conclusive evidence that any such merger, saletransfer, assignment, lease, conveyance or leaseother disposition and the supplemental indenture in respect thereof comply with this Section 5.01, and any that all conditions precedent herein provided for relating to such assumption, complies with the applicable provisions of the Indenturetransaction or transactions have been complied with.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person (whether or not the Company is the surviving corporation), or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of all or substantially all of its properties or assets to, another corporation, Person or entity unless: (i) the Company is the surviving corporation, or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made assumes all the obligations of the Company under the Collateral Agreements, the Registration Rights Agreement, the Intercreditor Agreement and all obligations of the Company under the Notes and this Indenture, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction (including giving effect to any other Person, unless Indebtedness and Acquired Debt incurred or expected to be incurred in connection with or in respect of such transaction and to any assumption required by clause (1ii) above) no Default or Event of Default exists; (iv) the Company or any Person formed by or surviving any such consolidation or merger, or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made (A) will have Consolidated Net Worth (immediately after the transaction but prior to any purchase accounting adjustments resulting from the transaction) equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to this Indenture and will have a Fixed Charge Coverage Ratio, determined on a pro forma basis, greater than or equal to the Fixed Charge Coverage Ratio of the Company immediately prior to the transaction; and (v) the Company or the entity or Person formed by or surviving any such consolidation or merger, or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made 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 any supplemental indenture required in connection with such transaction comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
(b) For purposes of the 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 Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(c) Upon any consolidation, combination or merger or any transfer of all or substantially all of the assets of the Company in accordance with the foregoing, in which the Company is not the continuing corporation, the successor Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, lease or transfer or lease is made shall (A) be incorporated or otherwise organized under the laws of the United States, any state thereof or the District of Columbia, and (B) expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, no Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, of the Company under this Indenture and the Indenture Notes, the Collateral Agreements, the Registration Rights Agreement and the Intercreditor Agreement with the same effect as if such successor Person surviving entity had been named as such.
(d) Each Subsidiary Guarantor (other than any Subsidiary Guarantor whose Subsidiary Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction made in compliance with Section 4.15) will not, and the Company in the Indenturewill not cause or permit any Subsidiary Guarantor to, and thereafterconsolidate with or merge with or into any Person, except in the case of a or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its assets, other than the predecessor Company or any other Subsidiary Guarantors unless: (i) the entity formed by or surviving any such consolidation or merger (if other than the Subsidiary Guarantor), or to which such disposition shall be relieved of have been made, is a corporation organized and discharged from all obligations and covenants existing under the Indenture 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 Subsidiary Guarantor on the Subsidiary 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 Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer use of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such leasenet proceeds therefrom on a pro forma basis, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to could satisfy the provisions of Sections 10.01 and 10.02 clause (iv) of the Existing Indenture, may receive an Opinion first paragraph of Counsel, prepared in accordance this covenant. Any merger or consolidation of a Subsidiary Guarantor with Section 15.01 of and into the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies Company (with the applicable provisions Company being the surviving entity) or another Subsidiary Guarantor need only to comply with clause (iv) of the IndentureSection 5.01(a).
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not shall not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company's assets (determined on a consolidated basis), whether as an entirety or substantially as an entirety to any other Person, unless Person unless: (i) either (1) the Company shall be the surviving corporation, partnership, trust or limited liability company or (2) the Person (if other than the Company) formed by or surviving any such consolidation or into which the Company is merged merger or to which such sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is other disposition (the "Surviving Entity") shall have been made (x) shall (A) be incorporated a corporation, partnership, trust or otherwise limited liability company organized and existing under the laws of the United States, any state thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes, according to their tenor, Securities and the due performance of every covenant of the Securities and punctual performance and observance this Indenture on the part of all other obligations to the Holders and the Trustee under the Indenture or under the Notes Company to be performed or observed by the Companyobserved; (ii) immediately before and (2) immediately after giving effect to such transaction no Default or Event of Default shall have occurred or be continuing; and (iii) 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, conveyanceassignment, transfer or transfer, lease, no Default shall 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 (y) all conditions precedent in this Indenture relating to such transaction have occurred and be continuingbeen satisfied. Clause (2) of Notwithstanding the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Companyforegoing, (Yi) any the merger of the Company into with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction shall be permitted and (ii) the merger of any Subsidiary of the Company or (Z) any merger of into the Company into an Affiliate of or the Company for the purpose of the Company reincorporating transfer, lease, conveyance or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease disposition of all or substantially all of the assets of a Subsidiary of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named permitted so long as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject delivers to the provisions of Sections 10.01 and 10.02 of the Existing IndentureTrustee an Officers' Certificate stating that such consolidation, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, assignment, transfer, lease, conveyance or lease, and any such assumption, other disposition complies with the applicable provisions of the Indenture, and 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) For purposes of the 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 Subsidiaries of the Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
Appears in 1 contract
Samples: Indenture (Quality Distribution Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not, and will not permit any of its Subsidiaries to, in a single transaction or series of related transactions, consolidate or merge with or merge into any (other Person than the consolidation or merger of a Wholly Owned Subsidiary of the Company with another Wholly Owned Subsidiary of the Company or into the Company), whether or not the Company or such Subsidiary is the surviving corporation, or directly and/or indirectly through the Company's Subsidiaries sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of all or substantially all of the properties or assets of the Company and its assets to any other PersonSubsidiaries (determined on a consolidated basis for the Company and its Subsidiaries taken as a whole) in one or more related transactions to, another corporation, Person or entity unless (1i) either (A) the Company, in the case of a transaction involving the Company, or such Subsidiary, in the case of a transaction involving any of the Company's Subsidiaries, is the surviving corporation or (B) in the case of a transaction involving the Company, the entity or the Person formed by or surviving any such consolidation or into which merger (if other than the Company is merged Company) or to which such sale, conveyanceassignment, transfer transfer, lease, conveyance or lease other disposition shall have been made is made shall (A) be incorporated a corporation organized or otherwise organized existing under the laws of the United StatesStates of America, any state thereof or the District of Columbia, Columbia or Bermuda and (B) expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, assumes all the due and punctual payment obligations of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or Company under the Notes and the Indenture pursuant to be performed or observed by a supplemental indenture in a form reasonably satisfactory to the CompanyTrustee (the "Surviving Entity"); and (2ii) immediately prior to and after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, transaction no Default shall have occurred and be continuing. Clause or Event of Default exists; (2iii) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of or, if other than the Company, (Y) any merger of the Company into any Subsidiary of the Company entity or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by or surviving any such consolidation or into which the Company is merged merger, or to which such sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is other disposition shall have been made shall succeed to(A) will have a Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be substituted forpermitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 3.13; (iv) if, and may exercise every right and power ofas a result of any such transaction, property or assets of the Company would become subject to a Lien securing Indebtedness not excepted from the provisions of this Indenture pursuant to Section 3.14, the Company under or the Surviving Entity, as the case may be, shall have secured the Notes as required by such provisions; (v) each Note Guarantor (including Persons that become Note Guarantors as a result 51 -73- of the transaction) shall have confirmed by supplemental indenture that its Note Guarantee shall apply for the Obligations of the surviving entity in respect of the Indenture with and the same effect as if such successor Person had been named as Notes; and (vi) the Company in shall have delivered to the Indenture, and thereafterTrustee an Officers' Certificate and, except in the case of a lease, the predecessor Company shall be relieved merger of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power any of the Company's Subsidiaries into the Company under the Indenture, in the name or into a Wholly Owned Subsidiary of the Company, an opinion of counsel, each stating that such consolidation, merger, conveyance, lease or in its own name; disposition and any act or proceeding by any provision supplemental indenture with respect thereto, comply with all of the Indenture required or permitted to be done by the Board terms of Directors or any officer of the Company may be done with like force this covenant and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described all conditions precedent provided for in this Section 5.04) shall be relieved provision relating to such transaction or series of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedtransactions have been complied with.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture Agreement (Dimon Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not consolidate with or merge into any other Person with or into, or sell, assign, convey, transfer or lease or otherwise dispose of (or cause or permit any of its Restricted Subsidiaries to sell, assign, convey, transfer or lease or otherwise dispose of), in one transaction or a series of transactions, directly or indirectly, all or substantially all its of the Company's assets to (determined on a consolidated basis for the Company and the Company's Restricted Subsidiaries) to, any other Person, unless unless:
(1) the resulting, surviving or transferee Person formed by such consolidation or into which (the Company is merged or to which such sale, conveyance, transfer or lease is made "SUCCESSOR COMPANY") shall (A) be incorporated or otherwise a Person organized and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia, Columbia and the Successor Company (Bif not the Company) shall expressly assume, by an indenture supplemental indenturethereto, executed and delivered by such Person prior to or simultaneously with such consolidationthe Trustee, merger, sale, conveyance, transfer or leasein form satisfactory to the Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes, according to their tenor, this Indenture and the due and punctual performance and observance Registration Rights Agreement on the part of all other obligations to the Holders and the Trustee under the Indenture or under the Notes Company to be performed or observed observed;
(2) immediately after giving PRO FORMA effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary thereof as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the Companytime of such transaction), no Default or Event of Default shall have occurred and be continuing;
(3) immediately after giving PRO FORMA effect to such transaction, (y) the Successor Company would be able to Incur an additional $1.00 of Indebtedness pursuant to CLAUSE (a) of SECTION 4.12, and (z) the Successor Company shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction;
(4) the Company 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 this Indenture; and
(5) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders will not recognize income, gain or loss for Federal income tax purposes as a result of such transaction and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such transaction had not occurred. Notwithstanding the foregoing, SUBCLAUSE (3) above will not be applicable to a Restricted Subsidiary of the Company consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Wholly Owned Restricted Subsidiary.
(b) The Parent will not consolidate with or merge with or into, or sell, assign, convey, transfer or lease or otherwise dispose of (or cause or permit any of its Restricted Subsidiaries to sell, assign, convey, transfer or lease or otherwise dispose of), in one transaction or a series of transactions, directly or indirectly, all or substantially all of the Parent's assets (determined on a consolidated basis for the Parent and the Parent's Restricted Subsidiaries) to, any Person, unless:
(1) the resulting, surviving or transferee Person (the "SURVIVING COMPANY") 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 Surviving Company shall expressly assume, by a Guaranty Agreement (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, all the obligations of the Parent under this Indenture;
(2) immediately after giving PRO FORMA effect to such transaction (and treating any Indebtedness which becomes an obligation of the Surviving Company or any Subsidiary thereof as a result of such transaction as having been Incurred by such Surviving Company or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(3) immediately after giving PRO FORMA effect to such transaction, (y) the Surviving Company would be able to Incur an additional $1.00 of Indebtedness pursuant to CLAUSE (A) of SECTION 4.12, and (z) the Surviving Company shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Parent immediately prior to such transaction;
(4) the Parent shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guaranty Agreement, if any, complies with this Indenture; and
(5) the Parent shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders will not recognize income, gain or loss for Federal income tax purposes as a result of such transaction and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such transaction had not occurred. Notwithstanding the foregoing, SUBCLAUSE (3) above will not be applicable to a Restricted Subsidiary of the Parent consolidating with, merging into or transferring all or part of its properties and assets to the Parent or a Wholly Owned Restricted Subsidiary.
(c) The Parent will not permit any Subsidiary Guarantor to consolidate with or merge with or into, or sell, assign, convey, transfer or lease or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of its assets, or issue or sell all of its Capital Stock, to any Person unless:
(1) the resulting, surviving or transferee Person (if not such Subsidiary Guarantor)shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guaranty Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary Guarantor, if any, under its Guarantee; PROVIDED, HOWEVER, that the restriction set forth in this SUBCLAUSE (1) shall not be applicable with respect to (a) any disposition of a Subsidiary Guarantor in its entirety, whether through a merger, consolidation or sale of Capital Stock or assets, to the Parent, the Company or any Wholly Owned Restricted Subsidiary or (b) any disposition of a Subsidiary Guarantor in its entirety, whether through a merger, consolidation or sale of Capital Stock or assets, to any other Person if in connection therewith the Parent provides an Officers' Certificate to the Trustee to the effect that the Parent and the Company will comply with their respective obligations under SECTION 4.16 in respect of such disposition;
(2) immediately after giving effect to such consolidationtransaction or transactions on a PRO FORMA basis (and treating any Indebtedness which becomes an obligation of the resulting, merger, sale, conveyance, transfer surviving or leasetransferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default or Event of Default shall have occurred and be continuing. Clause ; and
(23) the Parent delivers to the Trustee an Officers' Certificate and an Opinion of the immediately preceding sentence shall not apply to (X) any saleCounsel, conveyanceeach stating that such consolidation, merger or transfer or lease between or among the Company and one or more Subsidiaries of the Companysuch Guaranty Agreement, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizingif any, complies with this Indenture.
(bd) Upon any consolidation For purposes of this SECTION 5.01, the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease other disposition (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 the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation one or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer more Restricted Subsidiaries of any Person that the Capital Stock of which constitutes, directly or indirectly, all or substantially all of the properties and assets of such Person, shall at the time be deemed to be the successor transfer of all or substantially all of the Company hereunderproperties and assets of such Person. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.ARTICLE SIX
Appears in 1 contract
Samples: Indenture (Hines Horticulture Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not may not, directly or indirectly, (1) consolidate or merge with or merge into any other another Person (whether or not the Company is the surviving entity); or (2) sell, assign, transfer, convey, transfer lease or lease otherwise dispose of all or substantially all of the properties or assets of the Company and its assets Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any other another Person, unless unless:
(1) either:
(a) the Company is the surviving entity; or
(b) the Person formed by or surviving any such consolidation or into which merger (if other than the Company is merged Company) or to which such sale, assignment, transfer, conveyance, transfer lease or lease other disposition has been made is made shall (A) be incorporated a corporation organized or otherwise organized existing under the laws of the United States, any state thereof of the United States or the District of Columbia;
(2) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture, and the Collateral Documents pursuant to agreements reasonably satisfactory to the Trustee and in connection therewith shall cause such instruments and Uniform Commercial Code financing statements 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 Note Lien created under the Collateral Documents on the Note Collateral owned by or transferred to such Person;
(B3) expressly assumeimmediately before and after giving effect to such transaction, no Default or Event of Default shall have occurred and is continuing;
(4) the Company or the Person formed by supplemental indentureor surviving any such consolidation or merger (if other than the Company), executed or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.12; and
(5) the Company or such other Person shall have delivered by such Person prior to or simultaneously with the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consummation of such consolidation, merger, sale, assignment, transfer, conveyance, transfer lease or leaseother disposition on the terms proposed and, if such an assumption is required in connection with such transaction, such assumption, will comply with the due applicable provisions of this Indenture and punctual payment that all conditions precedent in this Indenture relating to such transaction as proposed will, upon consummation of such transaction as proposed, will be satisfied. The conditions set forth in clauses (3) and (4) of the principal first paragraph of and interest and premium, if any, on all this Section 5.01 will not apply to:
(1) a merger of the Notes, according to their tenor, and Company with an Affiliate solely for the due and punctual performance and observance purpose of all other obligations to reincorporating the Holders and the Trustee under the Indenture Company in another jurisdiction or under the Notes to be performed or observed by the Companyreorganizing into a holding company structure; and or
(2) immediately after giving effect to such consolidation, any consolidation or merger, or any sale, assignment, transfer, conveyance, transfer lease or lease, no Default shall have occurred and be continuing. Clause (2) other disposition of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease assets between or among the Company and one any of its Restricted Subsidiaries that are or more Subsidiaries become Guarantors. For purposes of the Companyforegoing, the transfer (Yby lease, assignment, sale or otherwise, in a single transaction or series of transactions) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease 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 to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved deemed to be the transfer of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power or substantially all of the Company under the Indenture, in the name properties and assets of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (Sterling Chemicals Inc)
Merger, Consolidation and Sale of Assets. (ai) The Company will shall not, and shall not permit any Restricted Subsidiary to, merge or consolidate with or merge into any other Person entity or sell, convey, transfer assign, transfer, lease or lease otherwise dispose of all or substantially all its of the Company's assets to any other Person, (determined on a consolidated basis for the Company and the Restricted Subsidiaries) unless (1a) the Person entity formed by or surviving any such consolidation or into which merger (if other than the Company is merged or such Restricted Subsidiary) or to which such sale, conveyance, transfer or lease conveyance is made (the "Surviving Entity") shall (A) be incorporated or otherwise a corporation organized and existing under the laws of the United States, States of America (or any state thereof or the District of Columbia, thereof) and (B) such corporation expressly assumeassumes, by supplemental indentureindenture satisfactory to the Trustee, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment all obligations of the principal Company or such Restricted Subsidiary, as the case may be, pursuant to this Indenture; (b) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis, no Default or Event of Default (and interest no event that, after notice or lapse of time, or both, would become an Event of Default) shall have occurred and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Companycontinuing; and (2c) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis (including, mergerwithout limitation, saleany Indebtedness Incurred or anticipated to be Incurred in connection with such transaction or series of transactions), conveyancethe Company or the Surviving Entity, transfer or leaseas the case may be, no Default shall have occurred and would be continuing. Clause able to Incur at least $1.00 of additional debt pursuant to clause (2i) of the immediately preceding sentence shall not apply to definition of Permitted Indebtedness; and (Xd) any sale, conveyance, transfer or lease between or among the Company shall have delivered to the Trustee an Officers' Certificate and one an Opinion of Counsel, each stating that such consolidation, merger or more Subsidiaries of transfer and such supplemental indenture (if any) comply with this Indenture. Notwithstanding the Companyforegoing, (Y) any merger of the Company into any no Subsidiary of the Company Guarantor shall merge or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company consolidate with or merger of the Company into any other Personentity, or any salesell, conveyanceconvey, transfer assign, transfer, lease or lease otherwise dispose of all or substantially all of the its assets of (other than to the Company to any other Personor another Subsidiary Guarantor), in accordance with this Section 5.04, the Person formed by such consolidation or into which unless the Company is merged or to which such saleand its remaining Restricted Subsidiaries are in compliance with Sections 5.01(i)(b), conveyance, transfer or lease is made (c) and (d).
(ii) The Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if or such successor Person had been named Restricted Subsidiary, as the Company in the case may be, under this Indenture, and thereafter, except but in the case of a lease, the predecessor Company or such Restricted Subsidiary, as the case may be, shall not be relieved released from the obligation to pay the principal of and discharged from all obligations and covenants under the Indenture and interest on the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(iii) Notwithstanding Sections 5.01(i)(b), (c) The Trusteeand (d), subject any Domestic Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that Company or any such merger, sale, conveyance or leaseother Domestic Restricted Subsidiary, and any Foreign Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties or assets to (a) any other Foreign Restricted Subsidiary or (b) the Company or any Domestic Restricted Subsidiary, provided that the surviving company or the transferee entity, as applicable, in such assumptionconsolidation, complies with merger or transfer is the applicable provisions of the IndentureCompany or such Domestic Restricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Us Can Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not may not, directly or indirectly, consolidate with or merge with or into any other Person (whether or not the Company is the Surviving Person) or sell, assign, convey, transfer transfer, lease or lease otherwise dispose of all or substantially all of its properties or assets (as an entirety or substantially as an entirety in one transaction or series of related transactions) to any Person or group of affiliated Persons or permit any of its Subsidiaries to enter into any such transaction or transactions if such transaction or transactions, in the aggregate, would result in a transfer of all or substantially all of the properties or assets of the Company on a consolidated basis to any other Person, unless unless:
(1i) the Company shall be the continuing Person, or the Person (if other than the Company) formed by such consolidation or merger or into which the Company is merged or to which such salethe properties of the Company are transferred (the “Surviving Entity”) shall be a partnership, conveyance, transfer limited liability company or lease is made shall (A) be incorporated or otherwise corporation duly organized and validly existing under the laws of the United States, States or any state thereof or the District of Columbia, Columbia and (B) shall expressly assume, by a supplemental indentureindenture and supplemental Collateral Documents in form and substance reasonably satisfactory to the Trustee, executed all of the obligations of the Company under the Notes, the Indenture and delivered the Collateral Documents, and the Notes, the Indenture and the Collateral Documents shall remain in full force and effect;
(ii) immediately before and immediately after giving effect to such transaction on a pro forma basis, no Event of Default or Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, the Company (or the Surviving Entity, as applicable) and the Restricted Subsidiaries would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio test set forth in paragraph (a) of Section 4.09;
(iv) immediately after such transaction, the Company or the Surviving Entity, as applicable, holds all Permits required for the operation of the business of, and such entity is controlled by a Person (or has retained a Person which is) experienced in, operating casino hotels or otherwise holds all Permits (including those required from Gaming Authorities) to operate its business; and
(v) such Person prior transaction would not require any Holder or beneficial owner of Notes to obtain a Gaming License or simultaneously with be qualified or found suitable under the law of any applicable gaming jurisdiction, provided that such Holder or beneficial owner would not have been required to obtain a gaming license or be qualified or found suitable under the laws of the applicable gaming jurisdiction in the absence of such transaction; provided further that a transaction involving a jurisdiction that does not require the licensing or qualification of any Holder of Notes as a condition to such transaction, but reserves the discretionary right to require the licensing or qualification of any Holder of Notes, shall not be prohibited pursuant to the terms of this clause (v). The Company or the Surviving Entity shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect to such consolidation, merger, saleassignment, conveyance, transfer transfer, lease or leasedisposition does not breach the Indenture and the Collateral Documents and, no Default shall have occurred and be continuing. Clause (2) if a supplemental indenture is required in connection with the transaction, the supplemental indenture complies with this provision of the immediately preceding sentence shall not apply Indenture and the Collateral Documents, and that all conditions precedent in the Indenture relating to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizingtransaction have been satisfied.
(b) Upon In the event of any consolidation of transaction (other than a lease) described in and complying with the Company with or merger of conditions listed in the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, immediately preceding paragraph in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged not the continuing Person, the successor Person formed or to which such sale, conveyance, transfer or lease is made remaining shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as Company, and the Company shall in the Indenture, and thereafter, except in the such case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedthe Collateral Documents.
(c) The Trustee, subject Notwithstanding anything herein to the provisions of Sections 10.01 contrary, TER Funding shall, at all times that the Company is a partnership or limited liability company, be maintained as a C corporation and 10.02 a directly Wholly-Owned Subsidiary of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the IndentureCompany.
Appears in 1 contract
Samples: Indenture (Trump Entertainment Resorts Holdings Lp)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not merge, consolidate or amalgamate with or merge into any other Person (other than a merger of a Restricted Subsidiary into the Company) or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all its assets to Property in any other Person, unless one transaction or series of transactions unless:
(1a) the Company shall be the surviving Person (the "Surviving Person") or the Surviving Person (if other than the Company) formed by such merger, consolidation or into which the Company is merged amalgamation or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall (A) be incorporated or otherwise a corporation organized and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia, and ;
(Bb) the Surviving Person (if other than the Company) expressly assumeassumes, by supplemental indentureindenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leaseSurviving Person, the due and punctual payment of the principal of and interest of, and premium, if any, on and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under conditions of the Indenture or under the Notes to be performed or observed by the Company; ;
(c) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of the Company, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(d) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis no Default or Event of Default shall have occurred and be continuing;
(2e) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis, the Company or the Surviving Person, as the case may be, would be able to Incur at least $1.00 of additional Debt under clause (a) of Section 4.09 hereof or, after giving effect to such incurrence, the Consolidated Interest Coverage Ratio of the Company or the Surviving Person, as the case may be, would be the same or better than such ratio immediately prior to giving effect to transaction or series of transactions; and
(f) the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such transaction and the supplemental indenture, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction have been satisfied. The Company shall not permit any Subsidiary Guarantor to merge, consolidate or amalgamate with or into any other Person (other than a merger of a Restricted Subsidiary into the Subsidiary Guarantor) or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all its Property in any one transaction or series of transactions unless:
(a) the surviving Person (if other than the Subsidiary Guarantor) formed by such merger, consolidation or amalgamation or to which such sale, conveyancetransfer, transfer or assignment, lease, conveyance or disposition is made shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia;
(b) the Surviving Person (if other than the Subsidiary Guarantor) expressly assumes, by supplemental indenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Person, the due and punctual payment of the principal of, and premium, if any, and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee;
(c) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of such Subsidiary Guarantor, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(d) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (d), any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person, the Company or any Restricted Subsidiary as a result of such transaction or series of transactions as having been Incurred by the Surviving Person, the Company or such Restricted Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ;
(2e) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Personshall deliver, or any salecause to be delivered, conveyance, transfer or lease of all or substantially all of to the assets of the Company to any other PersonTrustee, in accordance with this Section 5.04, form and substance reasonably satisfactory to the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 an Officers' Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared each stating that such transaction and such Subsidiary Guarantee, if any, in accordance respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction have been satisfied.
Section 5.01 shall not prohibit any Subsidiary Guarantor from consolidating with, merging into or transferring all or part of its assets to the Company or any other Subsidiary Guarantor. In addition, the foregoing provisions (other than clause (d) in the first paragraph of this Section 5.01) shall not apply to any transactions which constitute an Asset Sale if the Company has complied with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture4.12 hereof.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities:
(a) The Company Merger and Consolidation of NXP B.V.
(i) NXP B.V. will not consolidate with or merge into any other Person with or into, or sell, assign, convey, transfer transfer, lease or lease otherwise dispose of all or substantially all its assets assets, in one transaction or a series of related transactions, to any other Person, unless or permit any Person to consolidate with or merge with or into it, unless:
(1A) either (a) NXP B.V. will be the surviving Person formed by of any such consolidation or into which the Company is merged merger or to which any such sale, assignment, conveyance, lease, transfer or lease is made shall other disposition or (Ab) the resulting, surviving or transferee Person of any such consolidation or merger or any such sale, assignment, conveyance, lease, transfer or other disposition will be incorporated or otherwise a Person organized and existing under the laws of any member state of the European Union on January 1, 2004, the United StatesStates of America, any state thereof or the District of Columbia, Canada or any province of Canada, Norway, Switzerland or Singapore (or, a Person not organized under such laws which agrees (i) to submit to the jurisdiction of the United States district court for the Southern District of New York, and (Bii) to indemnify and hold harmless the Holders against certain Taxes and expenses due as a result of such transaction, if any), and, in the case of (b), such Person expressly assumeassumes, by supplemental indenture, executed and delivered by to the Trustee, all the obligations of NXP B.V. under the Securities and this Indenture (any such Person prior to under (a) or simultaneously with such consolidation(b), merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and a “Successor Issuer”);
(2B) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or leaseany Subsidiary of the Successor Issuer as a result of such transaction as having been Incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; and
(C) NXP B.V. shall have delivered to the Trustee (i) an Officers’ Certificate and an Opinion of Counsel, each to the effect that such transaction and such supplemental indenture (if any) comply with this Indenture and (ii) an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer (in each case, in form and substance reasonably satisfactory to the Trustee), provided that, in each case in giving an Opinion of Counsel, counsel may rely on an Officers’ Certificate as to any matters of fact, including as to satisfaction of Sections 6.05(a)(i)(B). Clause (2The restriction in Section 6.05(a)(i)(C) of the immediately preceding sentence shall not apply be applicable to (XA) any the consolidation with or merger with or into NXP B.V. of, or the sale, assignment, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyancelease, transfer or lease other disposition of all or substantially all of NXP B.V.’s assets to, an Affiliate of NXP B.V., if an Officer or NXP B.V.’s Board of Directors determines in good faith that the purpose of such transaction is principally to change NXP B.V.’s jurisdiction of incorporation or convert NXP B.V.’s form of organization to another form; or (B) the consolidation with or merger with or into NXP B.V. of, or the sale, assignment, conveyance, lease, transfer or other disposition of all or substantially all of NXP B.V.’s assets to, the Parent Guarantor or a single Wholly Owned Subsidiary of NXP B.V. in accordance with applicable law, provided that, if no supplemental indenture needs to be executed in relation to such transaction, NXP B.V. will notify the Company Trustee of such transaction (but no Officers’ Certificate or Opinion of Counsel shall need to be delivered to the Trustee in relation thereto).
(ii) If any consolidation or merger or any sale, assignment, conveyance, lease, transfer or other Person, disposition of all or substantially all of NXP B.V.’s assets occurs in accordance with this Section 5.04Indenture, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall Successor Issuer (if other than NXP B.V.) will succeed to, and be substituted for, for NXP B.V. and may exercise every right and power of, under this Indenture and the Company under the Indenture Securities with the same effect as if such successor Person Successor Company had been named as the Company in the NXP B.V.’s place in this Indenture, and thereafter, except in the case of a lease, the predecessor Company shall NXP B.V. will be relieved of and discharged released from all its obligations and covenants under the this Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedSecurities.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (NXP Funding LLC)
Merger, Consolidation and Sale of Assets. (a) The Company will not shall not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company's assets (determined on a consolidated basis for the Company and the Company's Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless Person unless:
(i) either (1) the Company shall be the surviving or continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Company's Restricted Subsidiaries substantially as an entirety (the "Surviving Entity"): (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, (A) by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes, according to their tenor, this Indenture and the due and punctual performance and observance Registration Rights Agreement on the part of all other obligations to the Holders and the Trustee under the Indenture or under the Notes Company to be performed or observed by the Company; and (2B) 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;
(ii) immediately after giving effect to such transaction and the assumption contemplated by clause (a)(i)(2)(y) of this Section 5.01 (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), 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) in compliance with Section 4.12;
(iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (a)(i)(2)(y) of this Section 5.01 (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and
(iv) the Company 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, conveyanceassignment, transfer or transfer, lease, no Default shall 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 occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizingbeen satisfied.
(b) Upon any consolidation For purposes of the Company with foregoing, the transfer (by lease, assignment, sale or merger otherwise, in a single transaction or series of the Company into any other Person, or any sale, conveyance, transfer or lease transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation Capital Stock of which constitutes all or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from substantially all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name properties and assets of the Company, shall be deemed to be the transfer of all or in its own name; and any act or proceeding by any provision substantially all of the Indenture required properties and assets of the Company. Notwithstanding anything in this Section 5.01 to the contrary, (1) the Company may merge with an Affiliate that has no material assets or permitted to be done by liabilities and that is incorporated or organized solely for the Board purpose of Directors reincorporating or any officer reorganizing the Company in another state of the United States or the District of Columbia without complying with clause (a)(ii) of this Section 5.01, (2) the merger or consolidation of Coinmach Corp. with and into the Company need only comply with clause (a)(iv) of this Section 5.01, and (3) the merger or xxxxxxx- dation of the Company may be done with like force and effect by the like board or officer into Coinmach Corp. need only comply with clauses (a)(i)(2)(y) and (a)(iv) of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated5.01.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (Coinmach Laundry Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or a series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company's assets (determined on a consolidated basis for the Company and its assets Restricted Subsidiaries), whether as an entirety or substantially as an entirety to any other Person, unless Person unless:
(i) either (1) the Company shall be the surviving or continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to which such the Person that acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Company's Restricted Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise an entity organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under every covenant of the Notes and this Indenture on the part of the Company to be performed or observed by the Company; and observed;
(2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), 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 4.12;
(iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and
(iv) the Company 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, conveyanceassignment, transfer or 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.
(b) For purposes of this Section 5.01, 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 and assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties or assets of the Company, will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(c) 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 4.15) 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 assumes by supplemental indenture all of the obligations of the Guarantor on its Guarantee; (ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Clause ; and (2iii) 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 immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer first paragraph of this Section 5.01. Any merger or lease between or among consolidation of a Guarantor with and into the Company and one (with the Company being the surviving entity) or more Subsidiaries of another Guarantor need not comply with clause (a) above. Notwithstanding anything in this Section 5.01 to the Companycontrary, (Ya) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into may merge with an Affiliate of the Company that has no material assets or liabilities and that is incorporated or organized solely for the purpose of reincorporating or reorganizing the Company reincorporating in another state of the United States or reorganizing.
the District of Columbia to realize tax benefits without complying with clause (ii) of the first paragraph of this covenant and (b) Upon any consolidation transaction characterized as a merger under applicable state law where each of the Company with or 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 the transfer of assets by the Company into any other Personor a Restricted Subsidiary, or any sale(y) an Investment, conveyance, transfer or lease if the result of all or substantially all such transaction is the acquisition of the assets of by the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedRestricted Subsidiary.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (Tioxide Americas Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not merge, consolidate or amalgamate with or merge into any other Person (other than a merger of a Wholly Owned Subsidiary into the Company) or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all of its assets to Property in any other Person, unless one transaction or series of transactions unless:
(1i) the Company shall be the Surviving Person in such merger, consolidation or amalgamation, or the Surviving Person (if other than the Company) formed by such merger, consolidation or into which the Company is merged amalgamation or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall (A) be incorporated or otherwise a corporation organized and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia, and ;
(Bii) the Surviving Person (if other than the Company) expressly assumeassumes, by supplemental indentureindenture in form satisfactory to the Trustee, in its reasonable judgment, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leaseSurviving Person, the due and punctual payment of the principal of and interest of, and premium, if any, on and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under the conditions of this Indenture or under the Notes to be performed or observed by the Company; and ;
(2iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of the Company, such Property shall have been transferred as an entirety or virtually as an entirety to one Person or a group of related persons;
(iv) immediately after giving effect to such consolidationtransaction on a pro forma basis, mergerthe Company or Surviving Person, saleas the case may be, conveyanceshall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction;
(v) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, transfer for purposes of this clause (v), any Debt that becomes, or leaseis anticipated to become, an obligation of the Surviving Person or any Subsidiary of the Company as a result of such transaction or series of transactions as having been Incurred by the Surviving Person or such Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing; and
(vi) the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance satisfactory to the Trustee, in its reasonable judgment, an Officers' Certificate and an Opinion of Counsel, each stating that such transaction or series of transactions and the supplemental indenture, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied. Clause (2) of the immediately preceding sentence The foregoing provisions shall not apply to (X) any sale, conveyance, transfer transaction or lease between or among series of transactions which constitute an Asset Sale if the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizinghas complied with Section 4.12.
(b) Upon The Company shall not permit any consolidation of the Company Subsidiary Guarantor to merge, consolidate or amalgamate with or merger of the Company into any other PersonPerson (other than a merger of a Wholly Owned Subsidiary into the Company or such Subsidiary Guarantor) or sell, transfer, assign, lease, convey or any sale, conveyance, transfer or lease otherwise dispose of all or substantially all its Property in any one transaction or series of transactions unless:
(i) the assets of the Company to any other Person, in accordance with this Section 5.04, the Surviving Person (if not such Subsidiary Guarantor) formed by such merger, consolidation or into which the Company is merged amalgamation or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall succeed tobe a corporation, company (including a limited liability company) or partnership organized and be substituted forexisting under the laws of the United States of America, any State thereof or the District of Columbia;
(ii) the Surviving Person (if other than such Subsidiary Guarantor) expressly assumes, by supplemental indenture in form satisfactory to the Trustee, in its reasonable judgment, executed and may exercise every right and power ofdelivered to the Trustee by such Surviving Person, the Company due and punctual performance and observance of all the obligations of such Subsidiary Guarantor under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except its Subsidiary Guarantee;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the predecessor Property of such Subsidiary Guarantor, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately after giving effect to such transaction on a pro forma basis, the Company or Surviving Person, as the case may be, shall be relieved of and discharged from all obligations and covenants under have a Consolidated Net Worth equal to or greater than the Indenture and the Notes, and from time to time such Person may exercise each and every right and power Consolidated Net Worth of the Company under the Indentureimmediately prior to such transaction;
(v) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, in the name for purposes of this clause (v), any Debt that becomes, or is anticipated to become, an obligation of the CompanySurviving Person, the Company or in its own name; and any act Subsidiary Guarantor as a result of such transaction or proceeding by any provision series of the Indenture required or permitted to be done transactions as having been Incurred by the Board of Directors or any officer of Surviving Person, the Company may be done with like force and effect by the like board or officer of any Person that shall such Subsidiary Guarantor at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be the successor of continuing; and
(vi) the Company hereunder. In shall deliver, or cause to be delivered, to the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject in form and substance satisfactory to the provisions of Sections 10.01 Trustee, in its reasonable judgment, an Officers' Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared each stating that such transaction or series of transactions and the supplemental indenture, if any, in accordance respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied. The foregoing provisions shall not apply to any transaction or series of transactions which constitute an Asset Sale if the Company has complied with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture4.12.
Appears in 1 contract
Samples: Indenture (Harbin Electric, Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not merge, consolidate or amalgamate with or merge into any other Person (other than a merger of a Wholly Owned Subsidiary into the Company) or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all of its assets to Property in any other Person, unless one transaction or series of transactions unless:
(1i) the Company shall be the Surviving Person in such merger, consolidation or amalgamation, or the Surviving Person (if other than the Company) formed by such merger, consolidation or into which the Company is merged amalgamation or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall (A) be incorporated or otherwise a corporation organized and existing under the laws of the British Virgin Islands, the United StatesStates of America, any state State thereof or the District of Columbia, and ;
(Bii) the Surviving Person (if other than the Company) expressly assumeassumes, by supplemental indentureindenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leaseSurviving Person, the due and punctual payment of the principal of and interest of, and premium, if any, on and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under the conditions of this Indenture or under the Notes to be performed or observed by the Company; ;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of the Company, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iv) and clauses (v) and (2vi) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person or any Subsidiary of the Company as a result of such transaction or series of transactions as having been Incurred by the Surviving Person or such Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing;
(v) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis:
(1) the Company or the Surviving Person, as the case may be, would be able to Incur at least $1.00 of additional Debt under clause (1) of Section 4.09; and
(2) the Company or the Surviving Person, as the case may be, would have a Fixed Charge Coverage Ratio that is not lower than the Fixed Charge Coverage Ratio of the Company immediately prior to such transaction;
(vi) immediately after giving effect to such transaction or series of transactions on a pro forma basis, the Surviving Person shall have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Company immediately prior to such transaction or series of transactions;
(vii) the Company shall deliver, or cause to be delivered, to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction or series of transactions and the supplemental indenture, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied; and
(viii) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such transaction and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such transaction had not occurred. The foregoing provisions (other than clause (iv)) shall not apply to any transaction or series of transactions which constitute an Asset Sale if the Company has complied with Section 4.12.
(b) The Company shall not permit any Guarantor to merge, consolidate or amalgamate with or into any other Person (other than a merger of a Wholly Owned Subsidiary into the Company or such Guarantor) or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all its Property in any one transaction or series of transactions unless:
(i) the Surviving Person (if not such Guarantor) formed by such merger, consolidation or amalgamation or to which such sale, conveyancetransfer, transfer or assignment, lease, conveyance or disposition is made shall be a corporation, company (including a limited liability company) or partnership organized and existing under the laws of the British Virgin Islands, the United States of America, any State thereof or the District of Columbia;
(ii) the Surviving Person (if other than such Guarantor) expressly assumes, by supplemental indenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Person, the due and punctual performance and observance of all the obligations of such Guarantor under its Guarantee;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of such Guarantor, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iv) and clauses (v) and (vi) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person, the Company or any of its Subsidiaries as a result of such transaction or series of transactions as having been Incurred by the Surviving Person, the Company or such Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ;
(v) immediately after giving effect to such transaction or series of transactions on a pro forma basis:
(1) the Company would be able to Incur at least $1.00 of additional Debt under clause (1) of the first paragraph of Section 4.09, and
(2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of would have a Fixed Charge Coverage Ratio which is not lower than the Company, (Y) any merger Fixed Charge Coverage Ratio of the Company into any Subsidiary immediately prior to such transaction; and
(vi) immediately after giving effect to such transaction or series of transactions on a pro forma basis, the Company shall have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Company immediately prior to such transaction or series of transactions; and
(Zvii) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Personshall deliver, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted cause to be done by delivered, to the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 an Officers’ Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared each stating that such transaction or series of transactions and the supplemental indenture, if any, in accordance respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied. The foregoing provisions (other than clause (iv)) shall not apply to any transaction or series of transactions which constitute an Asset Sale if the Company has complied with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture4.12.
Appears in 1 contract
Samples: Indenture (Sinoenergy CORP)
Merger, Consolidation and Sale of Assets. (a) The Company will not shall not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company's assets (determined on a consolidated basis for the Company and the Company's Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless Person unless: (i) either (1) the Company shall be the surviving or continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Company's Restricted Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes, according to their tenor, this Indenture and the due and punctual performance and observance Registration Rights Agreement on the part of all other obligations to the Holders and the Trustee under the Indenture or under the Notes Company to be performed or observed by the Companyobserved; and (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Company or such Surviving Entity, as the case may be, (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 at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12; (iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and (iv) the Company 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, conveyanceassignment, transfer or transfer, -64- lease, no Default shall 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 occurred been satisfied. Notwithstanding the foregoing clauses (ii) and be continuing. Clause (2) of the immediately preceding sentence shall not apply to iii), (Xa) any saleRestricted Subsidiary may consolidate with, conveyance, merge into or transfer all or lease between or among the Company part of its properties and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of assets to the Company or to another Restricted Subsidiary and (Zb) any merger of the Company into may merge with or transfer all of its properties and assets to an Affiliate of the Company incorporated or formed solely for the purpose of either reincorporating or reforming the Company reincorporating or reorganizingin 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) Upon For purposes of this Section 5.01, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions but excluding the creation of any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease 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 to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation Capital Stock of which constitutes all or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from substantially all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name properties and assets of the Company, shall be deemed to be the transfer of all or in its own name; and any act or proceeding by any provision substantially all of the Indenture required or permitted to be done by the Board of Directors or any officer properties and assets of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedCompany.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (Vista Eyecare Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not effect an arrangement or merge, consolidate or amalgamate with or merge into any other Person (other than a merger or amalgamation of a Wholly Owned Restricted Subsidiary with or into the Company) or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all its assets to Property in any other Person, unless one transaction or series of transactions unless:
(1i) the Company shall be the Surviving Person in such arrangement, merger, consolidation or amalgamation, or the Surviving Person (if other than the Company) formed by such arrangement, merger, consolidation or into which the Company is merged amalgamation or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall (A) be incorporated or otherwise a corporation organized and existing under the laws of Canada or any province or territory thereof or the United StatesStates of America, any state State thereof or the District of Columbia, and ;
(Bii) the Surviving Person (if other than the Company) expressly assumeassumes, by supplemental indentureindenture in form reasonably satisfactory to the Trustee, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leaseSurviving Person, the due and punctual payment of the principal of and interest of, and premium, if any, on and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under the conditions of this Indenture or under the Notes to be performed or observed by the Company; and ;
(2iii) immediately before and after giving effect to such consolidationtransaction or series of transactions on a pro forma basis (and treating, mergerfor purposes of this clause (iii) and clause (iv) below, saleany Debt that becomes, conveyanceor is anticipated to become, transfer an obligation of the Surviving Person or leaseany Restricted Subsidiary as a result of such transaction or series of transactions as having been Incurred by the Surviving Person or such Restricted Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ;
(2iv) other than in the case of the immediately preceding sentence shall not apply to (X) any merger, amalgamation, consolidation, sale, conveyancetransfer, transfer assignment, lease, conveyance or lease other disposal between or among the Company and one its Wholly Owned Subsidiaries, immediately after giving effect to such transaction or more Subsidiaries series of the Companytransactions on a pro forma basis, (Y) any merger of the Company into any Subsidiary of the Company or the Surviving Person, as the case may be, would be able to Incur at least US$1.00 of additional Debt under Section 4.09(a)(i); and
(Zv) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Personshall deliver, or any salecause to be delivered, conveyance, transfer or lease of all or substantially all of to the assets of the Company to any other PersonTrustee, in accordance with this Section 5.04, form and substance reasonably satisfactory to the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 an Officers' Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance each stating that such transaction or series of transactions and the supplemental indenture, if any, with respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied, including, where a supplemental indenture is required, receipt of Opinions of Counsel pursuant to Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture8.01(2).
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (aA) The Company will not not, directly or indirectly: (1) consolidate or merge with or merge into any other another Person (whether or not the Company is the surviving corporation); or (2) sell, conveyassign, transfer transfer, convey or lease otherwise dispose of all or substantially all of its assets properties or assets, in one or more related transactions, to any other another Person, unless ; unless:
(1i) either: (a) the Company is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or into which merger (if other than the Company is merged Company) or to which such sale, conveyanceassignment, transfer transfer, conveyance or lease other disposition shall have been made is made shall (A) be incorporated a corporation organized or otherwise organized existing under the laws of the United States, any state thereof or the District of Columbia;
(ii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Securities, the Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event of Default exists; and
(iv) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company):
(a) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction; and
(b) will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.04. In addition, the Company may not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. This Section 5.01 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and any of its Wholly Owned Restricted Subsidiaries. Notwithstanding the foregoing clauses (ii), (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its property and assets to the Company or any other Restricted Subsidiary and (b) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction. For purposes of the 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, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(B) expressly assume, by supplemental indenture, executed and delivered by such Person prior Each Guarantor (other than any Guarantor whose Guarantee is to or simultaneously be released in accordance with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment terms of the principal Guarantee and this Indenture in connection with any transaction complying with the provisions of and interest and premium, if any, on all the Notes, according to their tenorSection 4.05) will not, and the due 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 punctual performance and observance of all other obligations to the Holders and the Trustee existing under the Indenture laws of the United States or under any state thereof or the Notes to be performed or observed District of Columbia; (ii) such entity assumes by supplemental indenture all of the Companyobligations of the Guarantor on the Guarantee; and (2iii) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or leasetransaction, no Default or Event of Default shall have occurred and be continuing. Clause ; and (2iv) 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 immediately preceding sentence shall not apply to first paragraph of this Section 5.01. Notwithstanding the foregoing clause (Xiv), (a) any saleGuarantor may consolidate with, conveyance, merge into or transfer all or lease between or among the Company part of its property and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of assets to the Company or any other Guarantor and (Zb) any merger of the Company into an Affiliate of the Company Guarantor formed solely for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company merging with or merger of the Company and into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance may merge with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedPerson.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (Falcon Products Inc /De/)
Merger, Consolidation and Sale of Assets. (a) The Company will not shall not, in a single transaction or a series of related transactions, consolidate with or merge into any other Person with or into, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company’s assets to any other Personto, unless another Person or Persons unless:
(1) the Person formed by such consolidation or into which either:
(a) the Company shall be the surviving or continuing Person of such merger or consolidation; or
(b) the surviving Person is merged or to which such sale, conveyance, transfer or lease is made shall (A) be incorporated or otherwise organized a Person existing under the laws of the United States, any state thereof or the District of Columbia, Columbia and (B) such surviving Person shall expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, assume all the due and punctual payment obligations of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee Company under the Indenture or under the Notes to be performed or observed by the Company; Securities and this Indenture;
(2) immediately after giving effect to such consolidationtransaction (on a pro forma basis, mergerincluding any Indebtedness incurred or anticipated to be incurred in connection with such transaction and the other adjustments that are referred to in the definition of “Consolidated Fixed Charge Coverage Ratio”), sale, conveyance, transfer the Company or leasethe surviving Person is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.04;
(3) immediately before and immediately after giving effect to such transaction (including any Indebtedness incurred or anticipated to be incurred in connection with the transaction), no Default or Event of Default shall have occurred and be continuing. Clause ; and
(24) the Company or the surviving Person, as the case may be, has delivered to the Trustee an Officers’ Certificate and Opinion of Counsel, each stating that such consolidation, merger or transfer complies with this Indenture, that the surviving Person agrees to be bound thereby and by the Securities and the Registration Rights Agreement, and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
(b) For purposes of the 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 immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer properties or lease between or among the Company and assets of one or more Subsidiaries of the Company, (Y) any merger the Capital Stock of which constitutes all or substantially all of the Company into any Subsidiary properties and assets of the Company or (Z) any merger of Company, shall be deemed to be the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the properties and assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The TrusteeNotwithstanding clauses (1), subject (2) and (3) of the foregoing paragraph (a):
(1) any Restricted Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties and assets to the provisions Company; and
(2) the Company may merge with an Affiliate that is (x) a Person that has no material assets or liabilities and that was organized solely for the purpose of Sections 10.01 and 10.02 reorganizing the Company in another jurisdiction or (y) a Restricted Subsidiary of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 Company so long as all assets of the Existing Indenture, as conclusive evidence that any Company and the Restricted Subsidiaries immediately prior to such merger, sale, conveyance or lease, transaction are owned by such Restricted Subsidiary and any such assumption, complies with its Restricted Subsidiaries immediately after the applicable provisions of the Indentureconsummation thereof.
Appears in 1 contract
Samples: Indenture (BWAY Holding CO)
Merger, Consolidation and Sale of Assets. (a) The Company will not shall not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person (whether or not the Company is the surviving or continuing Person), or sell, conveyassign, transfer transfer, lease, convey or lease 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 (determined on a consolidated basis for the Company and its assets Restricted Subsidiaries), to any other Person, unless Person unless:
(i) either:
(1) the Company is the surviving or continuing Person; or
(2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made shall other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Surviving Entity”):
(A) be is a corporation or company organized or incorporated or otherwise organized and validly existing under the laws of the British Virgin Islands or the United StatesStates of America, any state State thereof or the District of Columbia, and ; and
(B) expressly assumeassumes, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders covenants of the Notes and the Trustee under Indenture on the Indenture or under part of the Notes Company to be performed or observed by the Company; observed;
(ii) immediately before and (2) immediately after giving effect to such transaction, no Default or Event of Default has occurred or is continuing;
(iii) if the surviving or Continuing Person is not the Company, each Subsidiary Guarantor has confirmed by supplemental indenture that its Subsidiary Guarantee will apply to the obligations of the Surviving Entity in respect of the Indenture and the Notes; and
(iv) the Company or the Surviving Entity has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, conveyanceassignment, transfer or transfer, lease, no Default shall conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture(s), if any, comply with the applicable provisions of the Indenture and that all conditions precedent in the Indenture relating to the transaction have occurred and be continuing. Clause been satisfied.
(2b) 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 immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer properties or lease between or among the Company and assets of one or more Restricted Subsidiaries of the Company, (Y) any merger the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company into any Subsidiary (determined on a consolidated basis for the Company and its Restricted Subsidiaries), shall be deemed to be the transfer of all or substantially all of the Company or properties and assets of the Company.
(Zc) The provisions of Section 4.1(a)(ii) above shall not apply to any merger or consolidation of the Company into an Affiliate of the Company incorporated solely for the purpose of reincorporating the Company reincorporating or reorganizing.
(b) Upon any consolidation in another jurisdiction so long as the Indebtedness of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company and its Restricted Subsidiaries taken as a whole is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedincreased thereby.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will Borrower shall not consolidate with, merge with or merge into any other Person into, or sell, convey, transfer transfer, lease or lease otherwise dispose of all or substantially all of its property and assets to, any Person or permit any Person to any other merge with or into the Borrower:
(a) unless the Borrower shall be the continuing Person, unless (1) or the Person (if other than the Borrower) formed by such consolidation or into which the Company Borrower is merged or to which that acquired or leased such sale, conveyance, transfer or lease is made property and assets of the Borrower (the “Surviving Entity”) shall (A) be incorporated or otherwise a company organized and validly existing under the laws of the Russian Federation, a member of the European Union (as the European Union is constituted on the date hereof), Switzerland or a State of the United States, any state thereof States of America or the District of Columbia, and (B) shall expressly assume, by supplemental indentureamendment hereto, executed and delivered by such continuing Person prior to or simultaneously the Lender (and, following the execution of any other agreements entered into in connection with the agreed funding source, to the party designated by such consolidationagreements), mergerin form and substance satisfactory to the Lender (and, salefollowing the execution of any other agreements entered into in connection with the agreed funding source, conveyance, transfer or leaseto the party designated by such agreements), the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenorLoan, and the due and punctual performance and observance of all the covenants, conditions and other obligations of the Borrower in respect of the Loan and under this Agreement;
(b) unless, in the case of a sale, conveyance, transfer, lease or other disposal of all or substantially all of the Borrower’s property and assets, such property and assets shall have been transferred as an entirety or substantially an entirety in one transaction or a series of related transactions to the Holders one Person;
(c) unless immediately before and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis (and treating any Indebtedness which becomes, mergeror is anticipated to become, sale, conveyance, transfer an obligation of the Surviving Entity or leaseany Subsidiary thereof as a result of such transaction or series of transactions as having been incurred by the Surviving Entity or such Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.;
(bd) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafterunless, except in the case of a leasemerger or consolidation between the Borrower and a Restricted Subsidiary, the predecessor Company shall be relieved immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and discharged from all obligations and covenants under the Indenture and the Notestreating any Indebtedness which becomes, and from time or is anticipated to time such Person may exercise each and every right and power become, an obligation of the Company under the Indenture, in the name Surviving Entity or any Subsidiary thereof as a result of the Company, such transaction or in its own name; and any act or proceeding by any provision series of the Indenture required or permitted to be done transactions as having been incurred by the Board of Directors Surviving Entity or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall such Subsidiary at the time be of such transaction or series of transactions) the Borrower, or any Person becoming the successor obligor of the Company hereunder. In Loan, as the event case may be, would be able to Incur an additional $1.00 of Indebtedness pursuant to Clause 14.7 (Incurrence of Indebtedness) hereof or would have a Consolidated Leverage Ratio less than the Consolidated Leverage Ratio of the Borrower immediately prior to such transaction;
(e) if, immediately after giving effect solely to such transaction or series of transactions on a pro forma basis (and treating any such saleIndebtedness which becomes, conveyance or transferis anticipated to become, but not any such lease, an obligation of the Company (Surviving Entity or any successor entity which shall theretofore Subsidiary thereof as a result of such transaction or series of transactions as having been Incurred by the Surviving Entity or such Subsidiary at the time of such transaction or series of transactions), a Rating Decline would occur, and such Rating Decline would not have become occurred but for such in the manner described in this Section 5.04) shall be relieved transaction or series of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.transactions;
(cf) The Trustee, subject unless the Borrower delivers to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive Lender an Opinion of Counsel, prepared in form and substance satisfactory to the Lender (and, following the execution of any other agreements entered into in connection with the agreed funding source, to the party designated by such agreements), to the effect that neither the Lender nor any agreed funding source will recognize any income, gain or loss for Tax purposes from any such consolidation, merger or sale of assets of the Borrower and that the Lender and any agreed funding source would, after such consolidation, merger or sale of assets of the Borrower, be subject to Taxes in the same amounts and in the same manner and at the same times as would have been the case if such consolidation, merger or sale of assets of the Borrower had not occurred; and
(g) unless the Borrower delivers to the Lender (and, following the execution of any other agreements entered into in connection with the agreed funding source, to the party designated by such agreements) an Officers’ Certificate (attaching the arithmetic computations to demonstrate compliance with Clause 14.15(d) hereof) and an Opinion of Counsel, each in form and substance satisfactory to the Lender (and, following the execution of any other agreements entered into in connection with the agreed funding source, to the party designated by such agreements) and in each case stating that such consolidation, merger or transfer and such supplemental agreement comply with this provision, that all conditions precedent provided for herein relating to such transaction have been complied with and, in the event that the continuing Person is organised under the laws of the Russian Federation, a member of the European Union, Switzerland, a State of the United States of America or the District of Columbia that this Agreement and the Loan constitute legal, valid and binding obligations of the continuing Person, enforceable in accordance with Section 15.01 their terms, subject, in the case of the Existing IndentureOpinion of Counsel, as conclusive evidence to customary exceptions, qualifications and limitations, provided, that any such merger, sale, conveyance Clauses 14.15(d) and (e) above shall not apply in respect of consolidations or lease, mergers between (i) the Borrower and any such assumption, complies with KB Impuls and (ii) the applicable provisions of the IndentureBorrower and VimpelCom-Region.
Appears in 1 contract
Samples: Loan Agreement (Open Joint Stock Co Vimpel Communications)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company’s assets (determined on a consolidated basis for the Company and the Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless 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, lease, conveyance or other disposition the assets of the Company and the Subsidiaries substantially as an entirety (the “Surviving Entity”) (x) shall be a corporation organized and validly existing under the laws of the United States or any State thereof or the District of Columbia, and (y) shall expressly assume, by supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes and the Indenture on the part of the Company to be performed or observed;
(2) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(y) above (including, without limitation, giving effect to 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 or the Surviving Entity 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.
(b) For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the assets of one or more Subsidiaries, the Capital Stock of which constitutes all or substantially all of the assets of the Company, shall be deemed to be the transfer of all or substantially all of the assets of the Company.
(c) Upon any consolidation or merger or any conveyance, lease or transfer of all or substantially all of the assets of the Company in accordance with the foregoing in which the Company is not the continuing corporation, the surviving entity formed by such consolidation or into which the Company is merged or to which such sale, conveyance, lease or transfer or lease is made shall (A) be incorporated or otherwise organized under the laws of the United States, any state thereof or the District of Columbia, and (B) expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, no Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Supplemental Indenture and the Indenture Notes with the same effect as if such successor Person surviving entity had been named as such.
(d) 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 IndentureTrustee), executed and thereafter, except in delivered to the case of a leaseTrustee, the predecessor Company shall be relieved performance of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power covenant of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon the Indenture on the part of such Guarantor to be dissolved and liquidated.performed or observed;
(c3) The Trusteeimmediately after giving effect to such transaction, subject no Default or Event of Default shall have occurred and be continuing; and
(4) the Company shall have delivered to the provisions of Sections 10.01 Trustee an Officer’s Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared each in accordance form and substance reasonably satisfactory to the Trustee and stating that such consolidation or merger and, if a supplemental indenture is required in connection with Section 15.01 of the Existing Indenturesuch transaction, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, supplemental indenture complies with the applicable provisions of the IndentureIndenture and that all conditions precedent in the Indenture relating to such 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 not may not, directly or indirectly, consolidate or merge with or merge into any other another Person (whether or not the Company is the Surviving Corporation) or sell, assign, transfer, convey, transfer lease or lease otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any other Personanother person, unless unless:
(1i) either:
(A) the Company shall be the surviving person or
(B) the Person (if other than the Company) formed by or surviving any such consolidation or into which merger (if other than the Company is merged Company) or to which such sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is other disposition has been made shall (A) be incorporated a corporation organized or otherwise organized existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia;
(ii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the person to which such sale, and (B) expressly assumeassignment, transfer, conveyance or other disposition has been made assumes, by supplemental indentureindenture in form satisfactory to the Trustee, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, all the due and punctual payment obligations of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or Company under the Notes to be performed or observed by the Company; and this Indenture;
(2iii) immediately after giving effect such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iii) and clause (iv) below, any Debt that becomes, or is anticipated to become, an obligation of the surviving person as a result of such consolidation, merger, sale, conveyance, transfer transaction or leaseseries of transactions as having been Incurred by the surviving person at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ;
(2iv) except with respect to a consolidation or merger of the immediately preceding sentence Company with or into a Restricted Subsidiary, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof; and
(v) the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance satisfactory to the Trustee, in its reasonable judgment, an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction or series of transactions and the supplemental indenture, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied.
(b) The foregoing provisions (other than clause (v)) shall not apply to any transaction or series of transactions which constitute an Asset Sale if the Company has complied with Section 4.12.
(Xc) any The sale, conveyanceassignment, transfer transfer, lease, conveyance or lease between other disposition of all or among substantially all of the Company and properties or assets of one or more Subsidiaries of the Company, (Y) any merger which properties or assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties or assets of the Company into any Subsidiary of on a consolidated basis, shall be deemed to be the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the properties or assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (Centene Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not merge, consolidate or amalgamate with or merge into any other Person (other than a merger of a Wholly Owned Subsidiary into the Company) or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all of its assets to Property in any other Person, unless one transaction or series of transactions unless:
(1a) the Company shall be the Surviving Person in such merger, consolidation or amalgamation, or the Surviving Person (if other than the Company) formed by such merger, consolidation or into which the Company is merged amalgamation or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall (A) be incorporated or otherwise a corporation organized and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia, and ;
(Bb) the Surviving Person (if other than the Company) expressly assumeassumes, by supplemental indentureindenture in form satisfactory to the Trustee, in its reasonable judgment, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leaseSurviving Person, the due and punctual payment of the principal of and interest of, and premium, if any, on and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under the conditions of this Indenture or under the Notes to be performed or observed by the Company; and ;
(2c) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of the Company, such Property shall have been transferred as an entirety or virtually as an entirety to one Person or a group of related persons;
(d) immediately after giving effect to such consolidationtransaction on a pro forma basis, mergerthe Company or Surviving Person, saleas the case may be, conveyanceshall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction;
(e) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, transfer for purposes of this clause (v), any Debt that becomes, or leaseis anticipated to become, an obligation of the Surviving Person or any Subsidiary of the Company as a result of such transaction or series of transactions as having been Incurred by the Surviving Person or such Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ; and
(2f) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Personshall deliver, or any salecause to be delivered, conveyance, transfer or lease of all or substantially all of to the assets of the Company to any other PersonTrustee, in accordance with this Section 5.04, form and substance satisfactory to the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the IndentureTrustee, in the name of the Companyits reasonable judgment, or in its own name; an Officers’ Certificate and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared each stating that such transaction or series of transactions and the supplemental indenture, if any, in accordance respect thereto comply with Section 15.01 this covenant and that all conditions precedent herein provided for relating to such transaction or series of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenturetransactions have been satisfied.
Appears in 1 contract
Samples: Indenture (China Shen Zhou Mining & Resources, Inc.)
Merger, Consolidation and Sale of Assets. (a) The Prior to the Conversion Date, the Company will not consolidate with shall not, nor shall it cause or merge permit any of the Guarantors to (i) enter into any other Person transaction, or series of related transactions, of merger, amalgamation, consolidation or combination, (ii) consolidate, liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), (iii) directly or indirectly convey, sell, conveylease, sublease, transfer or lease otherwise dispose of, in one transaction or in a series of transactions, in the case of this clause (iii), all or substantially all of its business, property or assets, whether now owned or hereafter acquired, or (iv) consummate any Asset Acquisition, except:
(i) in connection with the Acquisitions;
(ii) the Company or any Guarantor may merge with an Affiliate incorporated solely for the purposes of reincorporating the Company or such Subsidiary Guarantor in another jurisdiction;
(iii) any Guarantor may be merged, amalgamated, consolidated or combined with or into the Company or any Guarantor or be liquidated, wound up or dissolved, or all or substantially all of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or in a series of transactions, to the Company or to any Guarantor; provided, however, that (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) in the case of such a merger, amalgamation, consolidation or combination of the Company and a Guarantor, the Company shall be the continuing or surviving corporation, and (C) the surviving entity (I) continues to be bound as such under this Agreement or the Guarantee of such Guarantor, as the case may be, and (II) executes and delivers to the Agent immediately upon consummation of such transaction a written confirmation or acknowledgment to such effect, in form and substance satisfactory to the Agent, together with evidence of appropriate corporate power, authority and action and a written legal opinion in form and substance satisfactory to the Agent to the effect that this Agreement and such Guarantee continue to be a legal, valid and binding obligation of such entity, enforceable against such entity in accordance with its terms (subject to customary exceptions in respect of bankruptcy, insolvency and other equitable remedies), and with respect to such other matters as the Agents may reasonably request; and
(iv) the Company or any Restricted Subsidiary may make an Asset Acquisition so long as the total consideration for such acquisition pursuant to this Section 6.5(a)(iv) shall not exceed $1.0 million (including Acquired Indebtedness) and the total consideration for all of such acquisitions pursuant to this Section 6.5(a)(iv) shall not exceed $2.5 million (including Acquired Indebtedness) in the aggregate.
(b) After the Conversion Date, the Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person, unless 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 assets (determined on a consolidated basis for the Company and the Company's Restricted Subsidiaries) whether as an entirety or substantially as an entirety 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 to the Person which such acquires by sale, conveyanceassignment, transfer or lease is made shall (A) be incorporated or otherwise organized under the laws of the United Statestransfer, any state thereof or the District of Columbia, and (B) expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, conveyance or other disposition the due properties and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, no Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 's Restricted Subsidiaries substantially as an entirety (the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture."Surviving Entity"):
Appears in 1 contract
Samples: Senior Subordinated Credit Agreement (Ameristar Casinos Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company's assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless Person unless: (i) either (1) the Company shall be the surviving or continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Restricted Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes, according to their tenor, this Indenture and the due and punctual performance and observance Registration Rights Agreement on the part of all other obligations to the Holders and the Trustee under the Indenture or under the Notes Company to be performed or observed by the Companyobserved; and (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Company or such Surviving Entity, as the case may be, (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 at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.04; (iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and (iv) the Company 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, conveyanceassignment, transfer or transfer, lease, no Default shall 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 occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizingbeen satisfied.
(b) Upon any consolidation For purposes of the Company with foregoing, the transfer (by lease, assignment, sale or merger otherwise, in a single transaction or series of the Company into any other Person, or any sale, conveyance, transfer or lease transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation Capital Stock of which constitutes all or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from substantially all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name properties and assets of the Company, shall be deemed to be the transfer of all or in its own name; and any act or proceeding by any provision substantially all of the Indenture required or permitted to be done by the Board of Directors or any officer properties and assets of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedCompany.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (Sheffield Steel Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company’s assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless 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 to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the assets of the Company and the Restricted Subsidiaries substantially as an entirety (the “Surviving Entity”) (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest and premium, if any, and interest on all of the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to every covenant of the Holders Notes and the Trustee under Indenture on the Indenture or under part of the Notes Company to be performed or observed by the Company; and observed;
(2) immediately after giving effect to such consolidationtransaction on a pro forma basis and the assumption contemplated by clause (1)(B)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), mergerthe Company or such Surviving Entity, saleas the case may be, conveyanceshall be able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.03; provided, transfer however, that this clause (2) shall not be effective 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)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or leaseanticipated 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. Clause ; and
(24) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger 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 the Company into an Affiliate of Indenture and that all conditions precedent in the Company for the purpose of the Company reincorporating or reorganizingIndenture relating to such transaction have been satisfied.
(b) Upon any consolidation For purposes of the Company with foregoing, the transfer (by lease, assignment, sale or merger otherwise, in a single transaction or series of transactions) of all or substantially all of the Company into any other Personassets of one or more Restricted Subsidiaries, the Capital Stock of which constitutes all or any salesubstantially all of the assets of the Company, conveyance, shall be deemed to be the transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject 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 10.01 Section 4.12) will, and 10.02 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) if the Guarantor is a Domestic Restricted Subsidiary 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 Existing IndentureUnited 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 Trustee), may receive 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;
(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 (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 shall have delivered to the Trustee an Officers’ Certificate and Opinion of Counsel, prepared each stating that such consolidation or merger and, if a supplemental indenture is required in accordance connection with Section 15.01 of the Existing Indenturesuch transaction, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, supplemental indenture complies with the applicable provisions of the IndentureIndenture and that all conditions precedent in the Indenture relating to such transaction have been satisfied.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Except for or in connection with the BWAY Assumption, the related release of the Escrowed Property and the Mergers, prior to the Effective Date, the Company will not shall not, in a single transaction or a series of related transactions, consolidate with or merge into any other Person with or into, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of all or substantially all its of the Company’s assets to, another Person or Persons. From and after the Effective Date, the Company shall not, in a single transaction or a series of related transactions, consolidate with or merge with or into, or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to any other Personsell, unless assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company’s assets to, another Person or Persons unless:
(1) the Person formed by such consolidation or into which either:
(a) the Company shall be the surviving or continuing Person of such merger or consolidation; or
(b) the surviving Person is merged or to which such sale, conveyance, transfer or lease is made shall (A) be incorporated or otherwise organized a Person existing under the laws of the United States, any state thereof or the District of Columbia, Columbia and (B) such surviving Person shall expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, assume all the due and punctual payment obligations of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee Company under the Indenture or under the Notes to be performed or observed by the Company; Securities and this Indenture;
(2) immediately after giving effect to such consolidationtransaction (on a pro forma basis, mergerincluding any Indebtedness incurred or anticipated to be incurred in connection with such transaction and the other adjustments that are referred to in the definition of “Consolidated Fixed Charge Coverage Ratio”), sale, conveyance, transfer the Company or leasethe surviving Person is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.04;
(3) immediately before and immediately after giving effect to such transaction (including any Indebtedness incurred or anticipated to be incurred in connection with the transaction), no Default or Event of Default shall have occurred and be continuing. Clause ; and
(24) the Company or the surviving Person, as the case may be, has delivered to the Trustee an Officers’ Certificate and Opinion of Counsel, each stating that such consolidation, merger or transfer complies with this Indenture, that the surviving Person agrees to be bound thereby and by the Securities and the Registration Rights Agreement, and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
(b) For purposes of the 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 immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer properties or lease between or among the Company and assets of one or more Subsidiaries of the Company, (Y) any merger the Capital Stock of which constitutes all or substantially all of the Company into any Subsidiary properties and assets of the Company or (Z) any merger of Company, shall be deemed to be the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the properties and assets of the Company.
(c) Notwithstanding clauses (1), (2) and (3) of the foregoing paragraph (a):
(a) any Restricted Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties and assets to the Company; and
(b) the Company may merge with an Affiliate that is (x) a Person that has no material assets or liabilities and that was organized solely for the purpose of reorgan- izing the Company in another jurisdiction or (y) a Restricted Subsidiary of the Company so long as all assets of the Company and the Restricted Subsidiaries immediately prior to any other Personsuch transaction are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof. This covenant will not apply to the Mergers.
(d) Upon the execution and delivery by BWAY and BWAY Manufacturing to the Trustee of a supplemental indenture substantially in the form of Exhibit A to the Escrow Agreement and compliance with the provisions of Section 9.07, in accordance with this Section 5.04pursuant to which BWAY assumes, and BWAY Manufacturing guarantees, the Person formed by such consolidation or into which Issuer’s obligations under this Indenture and the Securities, BWAY shall be the successor Company is merged or to which such sale, conveyance, transfer or lease is made under this Indenture and the Securities and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under Issuer hereunder and thereunder and the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company Issuer shall be relieved of and discharged from all obligations and covenants under the this Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedSecurities.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (Bway Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of all or substantially all its of the Company’s properties and assets determined on a consolidated basis (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) to any other Person, unless unless:
(1) either
(A) the Company shall be the surviving or continuing Person; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition all or substantially all of the Company’s properties and assets (the “Surviving Entity”):
(i) shall (A) be incorporated or otherwise an entity organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, and ; and
(Bii) shall expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under every covenant in the Notes and this Indenture on the part of the Company to be performed or observed by the Company; and observed;
(2) immediately after giving effect to such consolidationtransaction and, mergerif applicable, salethe assumption contemplated by Section 5.01(a)(1)(B)(ii) above (including giving pro forma effect to any Indebtedness and Acquired Indebtedness incurred and any repayment, conveyancerepurchase, transfer defeasance, redemption or leaseother discharge of Indebtedness by the Company or the Surviving Entity, as the case may be, 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 at least $1.00 of additional Indebtedness pursuant to Section 4.07(b); or (c) shall have a Consolidated Fixed Charge Coverage Ratio that is equal to or greater than the Consolidated Fixed Charge Coverage Ratio of the Company immediately prior to such transaction (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 after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation of the 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 the Company or the Surviving Entity, 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 Company or the Surviving Entity 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. Clause ;
(24) of if the immediately preceding sentence shall Surviving Entity is not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, each Guarantor (Yunless it is the Surviving Entity, in which case Section 5.01(a)(1)(B) any merger above shall apply) shall have by supplemental indenture confirmed that its Guarantee of the Notes shall apply to such Surviving Entity’s obligations under this Indenture and the Notes; and
(5) the Company into or the Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel (which Opinion of Counsel 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.
(b) Notwithstanding the provisions of Section 5.01(a), any Subsidiary of the Company may merge or (Z) consolidate with or into or transfer all or any merger part of its properties and assets to the 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 an Affiliate of the Company for or the purpose of the Company reincorporating or reorganizingSurviving Entity, Section 5.01(f), shall not apply to any such transaction.
(bc) Upon any consolidation For purposes of the Company with or merger of foregoing, the Company into any other Person, or any sale, conveyanceassignment, transfer transfer, lease, conveyance or lease other disposition, in a single transaction or series of related transactions, of all or substantially all of the properties and assets of one or more Subsidiaries of the Company (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 on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(d) For purposes of clarity, it is understood and 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 Securitization Entity for the purpose of enabling such Securitization Entity to securitize the 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 Persondisposition of all or substantially all of the Company’s properties and assets, on a consolidated basis or otherwise, for purposes of the other paragraphs of this Section 5.01.
(e) Upon any consolidation or merger or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in accordance with this Section 5.04, the Person formed by such consolidation or into foregoing in which the Company is merged not the surviving or to which such salecontinuing entity, conveyanceas the case may be, transfer or lease is made the Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Indenture Notes with the same effect as if such successor Person Surviving Entity had been named as the Company in the Indenture“Company” herein and therein, and thereafterthe Company shall be released from all of its obligations under this Indenture and the Notes; provided that, except in the case of a lease, the predecessor Company shall be relieved lease of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power or substantially all of the Company under the Indenture, in the name properties and assets of the Company, or 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 its own name; any transaction described in, and any act or proceeding by any provision made in compliance with, this Section 5.01 shall be a Guarantor of the Indenture required Notes, or permitted to be done by if a Guarantor shall merge or consolidate with or into the Board of Directors Company or the Surviving Entity, as the case may be, in any officer transaction described in, and made in compliance with this Section 5.01, such Guarantor’s Guarantee of the Company may Notes will automatically terminate and be done with like force released and effect by the like board or officer of any Person that shall at the time such Guarantor will automatically be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged released from all of its obligations and covenants under the Indenture and its Guarantee of the Notes and may thereupon be dissolved and liquidatedall of its obligations as a Guarantor under this Indenture contemporaneously with such transaction.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (ai) The Neither the Company will not nor the Guarantor shall merge or consolidate with or merge into any other Person entity (other than a merger of a Subsidiary Guarantor into the Company or another Subsidiary Guarantor) or sell, convey, transfer assign, transfer, lease or lease otherwise dispose of all or substantially all its of their assets to any other Person, unless (1a) the Person entity formed by or surviving any such consolidation or into which merger (if other than the Company is merged or any Subsidiary Guarantor) or to which such sale, conveyance, transfer or lease conveyance is made (the "Surviving Entity") shall (A) be incorporated or otherwise a corporation organized and existing under the laws of the United States, any state thereof or the District States of Columbia, America and (B) such corporation expressly assumeassumes, by supplemental indentureindenture satisfactory to the Trustee, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment all obligations of the principal of and interest and premiumCompany or the Subsidiary Guarantor, if anyas the case may be, on all the Notes, according pursuant to their tenor, this Indenture and the due Escrow Agreement; (b) immediately before and punctual performance after giving effect to such transaction or series of transactions on a pro forma basis, no Default or Event of Default (and observance no event that, after notice or lapse of all other obligations to the Holders time, or both, would become an Event of Default) shall have occurred and the Trustee under the Indenture or under the Notes to be performed or observed by the Companycontinuing; and (2c) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis (including, mergerwithout limitation, saleany Indebtedness Incurred or anticipated to be Incurred in connection with such transaction or series of transactions), conveyancethe Company or the Surviving Entity, transfer or leaseas the case may be, no Default shall have occurred and would be continuing. Clause able to Incur at least $1.00 of additional debt pursuant to clause (2i) of the immediately preceding sentence shall not apply to definition of Permitted Indebtedness; and (Xd) any sale, conveyance, transfer or lease between or among the Company shall have delivered to the Trustee an Officers' Certificate and one an Opinion of Counsel, each stating that such consolidation, merger or more Subsidiaries of transfer and such supplemental indenture (if any) comply with this Indenture. Notwithstanding the Companyforegoing, (Y) any merger of the Company into any no other Subsidiary of the Company Guarantor shall merge or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company consolidate with or merger of the Company into any other Personentity, or any salesell, conveyanceconvey, transfer assign, transfer, lease or lease otherwise dispose of all or substantially all of the assets of its assets, unless the Company to any other Personand its remaining Restricted Subsidiaries have complied with Sections 5.01(i)(b), in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made (c) and (d).
(ii) The Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company under or the Indenture with the same effect as if such successor Person had been named Subsidiary Guarantor, as the Company in case may be, under this Indenture and the IndentureEscrow Agreement, and thereafterbut the predecessor Company, except in the case of a lease, shall not be released from the predecessor Company shall be relieved obligation to pay the principal of and discharged from all obligations and covenants under the Indenture and interest on the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(iii) Notwithstanding Sections 5.01(i)(b), (c) The Trusteeand (d), subject any Domestic Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that Company or any such merger, sale, conveyance or leaseother Domestic Restricted Subsidiary, and any Foreign Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties or assets to (i) any other Foreign Restricted Subsidiary or (ii) the Company or any Domestic Restricted Subsidiary, provided that the surviving company or the transferee entity, as the case may be, in such assumptionconsolidation, complies with merger or transfer is the applicable provisions of the IndentureCompany or such Domestic Restricted Subsidiary.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will shall not merge, consolidate or amalgamate with or merge into any other Person (other than a merger of a Wholly Owned Subsidiary into the Company) or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all of its assets to Property in any other Person, unless one transaction or series of transactions unless:
(1i) the Company shall be the Surviving Person in such merger, consolidation or amalgamation, or the Surviving Person (if other than the Company) formed by such merger, consolidation or into which the Company is merged amalgamation or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall be a corporation organized and existing under BVI laws;
(Aii) be incorporated or otherwise organized under the laws of Surviving Person (if other than the United States, any state thereof or the District of Columbia, and (BCompany) expressly assumeassumes, by supplemental indentureindenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leaseSurviving Person, the due and punctual payment of the principal of and interest of, and premium, if any, on and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under the conditions of this Indenture or under the Notes to be performed or observed by the Company; ;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of the Company, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (2and treating, for purposes of this clause (iv) and clause (v) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person or any Subsidiary of the Company as a result of such transaction or series of transactions as having been Incurred by the Surviving Person or such Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing;
(v) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis, mergerthe Surviving Person shall have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Company immediately prior to such transaction or series of transactions;
(vi) the Company shall deliver, or cause to be delivered, to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction or series of transactions and the supplemental indenture, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied; and
(vii) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders will not recognize income, gain or loss for United States federal and/or other applicable income tax purposes as a result of such transaction and will be subject to United States federal and/or other applicable income tax on the same amounts, in the same manner and at the same times as would have been the case if such transaction had not occurred. The foregoing provisions (other than clause (iv)) shall not apply to any transaction or series of transactions which constitute an Asset Sale if the Company has complied with Section 4.12.
(b) The Company shall not permit any Guarantor to merge, consolidate or amalgamate with or into any other Person (other than a merger of a Wholly Owned Subsidiary into the Company or such Guarantor) or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all its Property in any one transaction or series of transactions unless:
(i) the Surviving Person (if other than such Guarantor) expressly assumes, to the extent permitted by applicable laws, by supplemental indenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Person, the due and punctual performance and observance of all the obligations of such Guarantor under its Guarantee;
(ii) in the case of a sale, conveyancetransfer, transfer or assignment, lease, conveyance or other disposition of all or substantially all the Property of such Guarantor, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iii) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iii) and clause (iv) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person, the Company or any of its Subsidiaries as a result of such transaction or series of transactions as having been Incurred by the Surviving Person, the Company or such Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ;
(2iv) immediately after giving effect to such transaction or series of the immediately preceding sentence shall not apply to (X) any saletransactions on a pro forma basis, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of shall have a Consolidated Net Worth in an amount which is not less than the Company, (Y) any merger Consolidated Net Worth of the Company into any Subsidiary immediately prior to such transaction or series of transactions;
(v) the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Personshall deliver, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted cause to be done by delivered, to the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 an Officers’ Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared each stating that such transaction or series of transactions and the supplemental indenture, if any, in accordance respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied; and
(vi) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders will not recognize income, gain or loss for United States federal and/or other applicable income tax purposes as a result of such transaction and will be subject to United States federal and/or other applicable income tax on the same amounts, in the same manner and at the same times as would have been the case if such transaction had not occurred. The foregoing provisions (other than clause (iii)) shall not apply to any transaction or series of transactions which constitute an Asset Sale if the Company has complied with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture4.12.
Appears in 1 contract
Samples: Indenture (Origin Agritech LTD)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not consolidate with or merge with or into (whether or not the Company is the Surviving Person) any other Person entity and the Company shall not, and shall not cause or permit any Restricted Subsidiary to, sell, convey, transfer assign, transfer, lease or lease otherwise dispose of all or substantially all its of the Company’s and the Restricted Subsidiaries’ properties and assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) to any other PersonPerson in a single transaction or series of related transactions, unless unless:
(1) the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall either (A) the Company shall be incorporated the Surviving Person or otherwise (B) the Surviving Person (if other than the Company) shall be a corporation or limited liability company organized and validly existing under the laws of the United States, States of America or any state State thereof or the District of Columbia, and (B) shall, in any such case, expressly assume, assume by a supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and of, premium, if any, and interest on all the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders every covenant of this Indenture and the Trustee under the Indenture or under the Notes Registration Rights Agreement to be performed or observed by on the part of the Company; and ;
(2) immediately thereafter, on a pro forma basis after giving effect to such consolidation, merger, sale, conveyance, transfer transaction (and treating any Indebtedness not previously an obligation of the Company or leaseany Restricted Subsidiary in connection with or as a result of such transaction as having been Incurred at the time of such transaction), no Default or Event of Default shall have occurred and be continuing. Clause ;
(23) of immediately after giving effect to any such transaction including the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among Incurrence by the Company or any Restricted Subsidiary, directly or indirectly, of additional Indebtedness (and one or more Subsidiaries of the Company, (Y) treating any merger of the Company into any Subsidiary Indebtedness not previously an obligation of the Company or any Restricted Subsidiary in connection with or as a result of such transaction as having been Incurred at the time of such transaction), either (Za) the Surviving Person could Incur, on a pro forma basis after giving effect to such transaction, at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) under the Consolidated Leverage Ratio under Section 4.10 or (b) the Consolidated Leverage Ration would be lower than it is prior to giving effect to such transaction; and
(4) the Company shall have delivered to the Trustee and Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Notwithstanding Section 5.01(a)(3), (1) any merger Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company into or another Restricted Subsidiary, (2) the Company may merge with an Affiliate of the Company that has no significant assets or liabilities and was formed solely for the purpose of changing the Company’s jurisdiction of organization to another state of the United States, provided that the surviving entity assumes, by supplemental indenture in form reasonably satisfactory to the Trustee, the Company’s obligations under this Indenture and the Registration Rights Agreement, and (3) the Issuers may merge with and into each other. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all the properties and assets of one or more Restricted Subsidiaries the Capital Stock of which constitute all or substantially all the properties and assets of the Company reincorporating shall be deemed to be the transfer of all or reorganizingsubstantially all the properties and assets of the Company.
(b) Upon In connection with any consolidation of the Company with consolidation, merger, transfer, lease or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power ofdisposition contemplated hereby, the Company under shall deliver, or cause to be delivered, to the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the IndentureTrustee, in form and substance reasonably satisfactory to the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 an Officers’ Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indentureeach stating that such consolidation, as conclusive evidence that any such merger, saletransfer, conveyance lease or lease, other disposition and any such assumption, complies the supplemental indenture in respect thereof comply with the applicable provisions of the requirements under this Indenture.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Unless otherwise specified as contemplated by Section 2.04(a) hereof, the Company will not may not, directly or indirectly, consolidate or merge with or merge into any other another Person (whether or not the Company is the Surviving Person (as defined below)) or sell, assign, transfer, convey, transfer lease or lease otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any other Personanother person, unless unless:
(1i) either:
(A) the Company shall be the Surviving Person or
(B) the Person formed by or surviving any such consolidation or into which the Company is merged merger or to which such sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is other disposition has been made (the “Surviving Person”), in any case if other than the Company, shall (A) be incorporated a corporation organized or otherwise organized existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia;
(ii) the Surviving Person (if other than the Company) or the person to which such sale, and (B) expressly assumeassignment, transfer, conveyance or other disposition has been made assumes, by supplemental indentureindenture in form satisfactory to the Trustee, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, all the due and punctual payment obligations of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee Company under the Indenture or under the Notes to be performed or observed by the Company; Securities and this Indenture;
(2iii) immediately after giving effect such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iii) and clause (iv) below, any Debt that becomes, or is anticipated to become, an obligation of the surviving person as a result of such consolidation, merger, sale, conveyance, transfer transaction or leaseseries of transactions as having been Incurred by the surviving person at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ; and
(2iv) the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance satisfactory to the Trustee, in its reasonable judgment, an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction or series of transactions and the supplemental indenture, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied.
(b) The sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer properties or lease between or among the Company and assets of one or more Subsidiaries of the Company, (Y) any merger which properties or assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties or assets of the Company into any Subsidiary of on a consolidated basis, shall be deemed to be the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the properties or assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (Centene Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not consolidate with or merge with or into (whether or not the Company is the Surviving Person) any other Person and the Company shall not, and shall not cause or permit any Restricted Subsidiary to, sell, convey, transfer assign, transfer, lease or lease otherwise dispose of all or substantially all its of the property and assets of the Company and the Restricted Subsidiaries, taken as a whole, to any other PersonPerson or Persons in a single transaction or series of related transactions, unless unless: (1i) either (x) the Company shall be the Surviving Person formed by such consolidation or into which (y) the Company is merged or to which such sale, conveyance, transfer or lease is made Surviving Person (if other than the Company) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States of America or any state State thereof or the District of Columbia, and (B) shall, in any such case, expressly assume, assume by a supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders every covenant of this Indenture and the Trustee under the Indenture or under the Notes Registration Rights Agreement to be performed or observed by on the part of the Company; and (2ii) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or leasetransaction, no Default shall have occurred and be continuing. Clause ; and (2iii) immediately after giving effect to such transaction, the Company or the Surviving Person (as the case may be) could Incur at least $1.00 of additional Indebtedness pursuant to the immediately preceding sentence first paragraph of Section 4.12 (if the Company shall not apply be the Surviving Person, all references to (X) any sale, conveyance, transfer or lease between or among the Company and one or more the Restricted Subsidiaries of in the Company, definitions used to determine the Leverage Ratio shall be to the Surviving Person and its Subsidiaries after giving effect to such transaction (Y) excluding any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizingUnrestricted Subsidiaries)).
(b) Upon any consolidation For purposes of this Section 5.01, the Company with transfer (by lease, assignment, sale or merger otherwise, in a single transaction or series of the Company into any other Person, or any sale, conveyance, transfer or lease transactions) of all or substantially all of the properties and assets of the Company to any other Person, in accordance with this Section 5.04one or more Restricted Subsidiaries, the Person formed by such consolidation Equity Interests of which constitutes all or into which substantially all the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, properties and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name assets of the Company, shall be deemed to be the transfer of all or in its own name; substantially all the properties and any act or proceeding by any provision assets of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedCompany.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (Idt Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person (whether or not the Company is the surviving entity), or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of all or substantially all of its properties or assets to any other Personto, unless another corporation, Person or entity unless: (1i) the Company is the surviving entity, or the entity or the Person formed by or surviving any such consolidation or into which merger (if other than the Company is merged Company) or to which such sale, conveyanceassignment, transfer transfer, lease, conveyance or lease other disposition shall have been made is made shall (A) be incorporated a corporation organized or otherwise organized existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made assumes all the obligations of the Company under the Notes and this Indenture and the Registration Rights Agreement, pursuant to a supplemental indenture and any other documents or instruments requested by the Trustee, in each case, in a form reasonably satisfactory to the Trustee under the Notes and this Indenture; (iii) immediately after such transaction (including giving effect to any Indebtedness and Acquired Debt incurred or expected to be incurred in connection with or in respect of such transaction and to any assumption required by clause (ii) above) no Default or Event of Default exists; (iv) the Company or any entity formed by or surviving any such consolidation or merger, or to which such sale, assignment, transfer, lease conveyance or other disposition will have been made (A) will have Consolidated Net Worth (immediately after the transaction but prior to any purchase accounting adjustments resulting from the transaction) equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) expressly assumewill, by supplemental indentureat the time of such transaction and after giving PRO FORMA effect thereto as if such transaction had occurred at the beginning of the applicable four quarter period, executed be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.12 of this Indenture and delivered by such Person will have a Fixed Charge Coverage Ratio, determined on a PRO FORMA basis, greater than or equal to the Fixed Charge Coverage Ratio of the Company immediately prior to the transaction; and (v) the Company or simultaneously the entity or Person formed by or surviving any such consolidation or merger, or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel (with respect to which opinion such counsel may rely solely as to matters of fact on an Officers' Certificate), each stating that such consolidation, merger, sale, conveyanceassignment, transfer or transfer, lease, conveyance or other disposition and any supplemental indenture required in connection with such transaction comply with the due applicable provisions of this Indenture and punctual payment that all conditions precedent in this Indenture relating to such transaction have been satisfied.
(b) For purposes of the principal foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance transactions) of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, no Default shall have occurred and be continuing. Clause (2) substantially all of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer properties or lease between or among the Company and assets of one or more Subsidiaries of the Company, (Y) any merger the Capital Stock of which constitutes all or substantially all of the Company into any Subsidiary properties and assets of the Company or (Z) any merger of Company, shall be deemed to be the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the properties and assets of the Company Company.
(c) Each Restricted Subsidiary (other than any Restricted Subsidiary whose Subsidiary Guarantee is to any other Person, be released in accordance with the terms of such Subsidiary Guarantee and this Indenture in connection with any transaction made in compliance with the provisions of Section 4.15) will not, and the Company will not cause or permit any Restricted Subsidiary to, consolidate with or merge with or into any Person (other than the Company or any Restricted Subsidiary of the Company), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its assets (other than to the Company or any Restricted Subsidiary of the Company), unless: (i) the entity formed by or surviving any such consolidation or merger (if other than the Restricted Subsidiary), or to which such 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; (ii) such entity assumes by supplemental indenture all of the obligations of the Restricted Subsidiary on the Subsidiary Guarantee; (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 could satisfy the provisions of clause (iv) of paragraph (a) of this Section 5.04, 5.1; and (v) the Subsidiary Guarantor or the entity or Person formed by or surviving any such consolidation or into which the Company is merged merger, or to which such sale, conveyanceassignment, transfer or lease is made shall succeed totransfer, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transferother disposition will have been made, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject delivered to the provisions of Sections 10.01 Trustee an Officers' Certificate and 10.02 of the Existing Indenture, may receive an Opinion of CounselCounsel (with respect to which opinion such counsel may rely solely as to matters of fact on an Officers' Certificate), prepared in accordance with Section 15.01 of the Existing Indentureeach stating that such consolidation, as conclusive evidence that any such merger, sale, assignment, transfer, lease, conveyance or lease, other disposition and any supplemental indenture required in connection with such assumption, complies transaction comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transactions have been satisfied. Any merger or consolidation of a Restricted Subsidiary with and into the IndentureCompany (with the Company being the surviving entity) or another Restricted Subsidiary need only comply with clause (iv) of paragraph (a) of this Section 5.1.
Appears in 1 contract
Samples: Indenture (CSS Trade Names Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not merge, consolidate or amalgamate with or merge into any other Person (other than a merger of a Wholly Owned Subsidiary into the Company) or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all of its assets to Property in any other Person, unless one transaction or series of transactions unless:
(1i) the Company shall be the Surviving Person in such merger, consolidation or amalgamation, or the Surviving Person (if other than the Company) formed by such merger, consolidation or into which the Company is merged amalgamation or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall (A) be incorporated or otherwise a corporation organized and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia, and ;
(Bii) the Surviving Person (if other than the Company) expressly assumeassumes, by supplemental indentureindenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leaseSurviving Person, the due and punctual payment of the principal of and interest of, and premium, if any, on and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under the conditions of this Indenture or under the Notes to be performed or observed by the Company; ;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of the Company, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iv) and clauses (v) and (2vi) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person or any Subsidiary of the Company as a result of such transaction or series of transactions as having been Incurred by the Surviving Person or such Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing;
(v) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis:
(1) the Company or the Surviving Person, as the case may be, would be able to Incur at least $1.00 of additional Debt under clause (1) of Section 4.09; and
(2) the Company or the Surviving Person, as the case may be, would have a Fixed Charge Coverage Ratio that is not lower than the Fixed Charge Coverage Ratio of the Company immediately prior to such transaction;
(vi) immediately after giving effect to such transaction or series of transactions on a pro forma basis, the Surviving Person shall have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Company immediately prior to such transaction or series of transactions;
(vii) the Company shall deliver, or cause to be delivered, to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction or series of transactions and the supplemental indenture, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied; and
(viii) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders will not recognize income, gain or loss for federal income tax purposes as a result of such transaction and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such transaction had not occurred. The foregoing provisions (other than clause (iv)) shall not apply to any transaction or series of transactions which constitute an Asset Sale if the Company has complied with Section 4.12.
(b) The Company shall not permit any Guarantor to merge, consolidate or amalgamate with or into any other Person (other than a merger of a Wholly Owned Subsidiary into the Company or such Guarantor) or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all its Property in any one transaction or series of transactions unless:
(i) the Surviving Person (if not such Guarantor) formed by such merger, consolidation or amalgamation or to which such sale, conveyancetransfer, transfer or assignment, lease, conveyance or disposition is made shall be a corporation, company (including a limited liability company) or partnership organized and existing under the laws of the United States of America, any State thereof or the District of Columbia;
(ii) the Surviving Person (if other than such Guarantor) expressly assumes, by supplemental indenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Person, the due and punctual performance and observance of all the obligations of such Guarantor under its Guarantee;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of such Guarantor, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iv) and clauses (v) and (vi) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person, the Company or any of its Subsidiaries as a result of such transaction or series of transactions as having been Incurred by the Surviving Person, the Company or such Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ;
(v) immediately after giving effect to such transaction or series of transactions on a pro forma basis:
(1) the Company would be able to Incur at least $1.00 of additional Debt under clause (1) of the first paragraph of Section 4.09, and
(2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of would have a Fixed Charge Coverage Ratio which is not lower than the Company, (Y) any merger Fixed Charge Coverage Ratio of the Company into any Subsidiary immediately prior to such transaction; and
(vi) immediately after giving effect to such transaction or series of transactions on a pro forma basis, the Company shall have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Company immediately prior to such transaction or series of transactions; and
(Zvii) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Personshall deliver, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted cause to be done by delivered, to the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 an Officers’ Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared each stating that such transaction or series of transactions and the supplemental indenture, if any, in accordance respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied. The foregoing provisions (other than clause (iv)) shall not apply to any transaction or series of transactions which constitute an Asset Sale if the Company has complied with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture4.12.
Appears in 1 contract
Samples: Indenture (China Natural Gas, Inc.)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveytransfer, transfer or lease otherwise dispose of (or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company’s assets to any other Person, unless (1determined on a consolidated basis for the Company and the Company’s Restricted Subsidiaries) unless:
(i) either (A) the Company shall be the surviving or continuing entity or (B) the Person (if other than the Company) formed by such consolidation or into which the Company merger is merged or to which such sale, conveyance, transfer or lease is made shall (A) be incorporated or otherwise an entity organized and validly existing under the laws of the United States, any state thereof or State thereof, the District of Columbia, and (B) expressly assume, by supplemental indenture, executed and delivered by such Person prior to Columbia or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment any state which was a member state of the principal of and interest and premiumEuropean Union on December 31, 2003 or Canada or any province thereof (the “Surviving Entity”);
(ii) the Surviving Entity, if any, on all the Notes, according to their tenor, expressly assumes by a joinder or other agreement in form and the due and punctual performance and observance of all other obligations substance reasonably satisfactory to the Holders Administrative Agent all rights and obligations of the Trustee Company under the Indenture or under the Notes Loan Document to be performed or observed by the Company; and which it is a party;
(2iii) immediately after giving effect to such consolidationtransaction, mergerincluding the assumption of the Loans, (I) the Company or the Surviving Entity is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 5.08(b) hereof (assuming for this purpose that the Extension Date has occurred) or (II) the Fixed Charge Coverage Ratio at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period will be equal to or greater than it was immediately before such transaction;
(iv) immediately before and after giving effect to such transaction, including the assumption of the Loans, no Default or Event of Default occurred or exists; and
(v) the Company or the Surviving Entity shall have delivered to the Lenders an officers’ certificate and an opinion of counsel, stating that all requirements under this Agreement for such a transaction have been satisfied, it being understood that such opinion of counsel may rely as to certain matters of fact on such officer’s certificate.
(b) Each Guarantor (other than any guarantor whose guarantee is to be released in accordance with the terms of this Agreement in connection with any transaction complying with the provisions of Section 5.11 will not, and the Company will not cause or permit any other Guarantor to, consolidate with or merge with or into any Person other than Borrower 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, conveyance, transfer or lease, conveyance or other disposition shall have been made assumes by Accession Letter all of the obligations of the Guarantor on the guarantee;
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Clause ; and
(2iii) either (I) at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power ofapplicable four-quarter period, the Company will be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth under Section 5.08(b) (assuming for this purpose that the Indenture with Extension Date has occurred) or (II) the same Consolidated Fixed Charge Coverage Ratio at the time of such transaction and after giving pro forma effect thereto as if such successor Person transaction had been named as occurred at the Company in beginning of the Indenture, and thereafter, except in the case applicable four-quarter period will be equal to or greater than it was immediately before such transaction. Any merger or consolidation of a lease, Guarantor with and into Borrower (with Borrower being the predecessor Company shall be relieved surviving entity) or another Guarantor need not comply with paragraph (a) of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated5.19.
(c) The Trustee, subject Notwithstanding anything in this section to the provisions contrary,
(i) the Company or Borrower may (A) merge with an Affiliate that has no material assets or liabilities and that is incorporated or organized solely for the purpose of Sections 10.01 and 10.02 reincorporating or reorganizing the Company or Borrower, as the case may be, in any state of the Existing IndentureUnited States, may receive an Opinion the District of Counsel, prepared in accordance with Section 15.01 Columbia or any state which was a member state of the Existing IndentureEuropean Union on December 31, as conclusive evidence that any such merger2003 and (B) may otherwise convert its legal form under the laws of its jurisdiction of organization, salein each case, conveyance or lease, and any such assumption, complies without complying with the applicable provisions clause (iii) of the Indenturefirst paragraph of this covenant;
(ii) any transaction characterized as a merger under applicable law where each of the constituent entities survives, will not be treated as a merger for purposes of this Section 5.19, but instead will be treated as
(A) an Asset Sale, if the result of such transaction is the transfer of assets by the Company, Borrower or another Restricted Subsidiary of the Company, or
(B) an Investment, if the result of such transaction is the acquisition of assets by the Company, Borrower or another Restricted Subsidiary of the Company,
(C) neither Millennium Chemicals Inc. nor Millennium Holdings LLC nor any of their respective subsidiaries as of the Closing Date may be merged with or into the Company or any other Restricted Subsidiary of the Company (other than with or into Millennium Holdings LLC or any of its other subsidiaries as of the Closing Date).
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will shall not merge, consolidate or amalgamate with or merge into any other Person (other than a merger of a Wholly Owned Subsidiary into the Company) or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all of its assets to Property in any other Person, unless one transaction or series of transactions unless:
(1i) the Company shall be the Surviving Person in such merger, consolidation or amalgamation, or the Surviving Person (if other than the Company) formed by such merger, consolidation or into which the Company is merged amalgamation or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall (A) be incorporated or otherwise a corporation organized and existing under the laws of the British Virgin Islands, the United StatesStates of America, any state State thereof or the District of Columbia, and ;
(Bii) the Surviving Person (if other than the Company) expressly assumeassumes, by supplemental indentureindenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leaseSurviving Person, the due and punctual payment of the principal of and interest of, and premium, if any, on and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under the conditions of this Indenture or under the Notes to be performed or observed by the Company; ;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of the Company, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iv) and clauses (v) and (2vi) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person or any Subsidiary of the Company as a result of such transaction or series of transactions as having been Incurred by the Surviving Person or such Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing;
(v) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis:
(1) the Company or the Surviving Person, as the case may be, would be able to Incur at least US$1.00 of additional Debt under clause (1) of Section 4.09; and
(2) the Parent would have a Fixed Charge Coverage Ratio that is not lower than the Fixed Charge Coverage Ratio of the Parent immediately prior to such transaction and would have a Leverage Ratio that is not higher than the Leverage Ratio of the Parent immediately prior to such transaction;
(vi) immediately after giving effect to such transaction or series of transactions on a pro forma basis, the Parent shall have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Parent immediately prior to such transaction or series of transactions;
(vii) the Company shall deliver, or cause to be delivered, to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction or series of transactions and the supplemental indenture, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied; and
(viii) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders will not recognize income, gain or loss for federal income tax purposes as a result of such transaction and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such transaction had not occurred. The foregoing provisions (other than clause (iv)) shall not apply to (x) any transaction or series of transactions which constitute an Asset Sale if the Company has complied with Section 4.12 or (y) the merger of the Parent into the Company.
(b) The Company shall not permit any Subsidiary Guarantor to merge, consolidate or amalgamate with or into any other Person (other than a merger of a Wholly Owned Subsidiary into the Company or such Subsidiary Guarantor) or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all its Property in any one transaction or series of transactions unless:
(i) the Surviving Person (if not such Subsidiary Guarantor) formed by such merger, consolidation or amalgamation or to which such sale, conveyancetransfer, transfer or assignment, lease, conveyance or disposition is made shall be a corporation, company (including a limited liability company) or partnership organized and existing under the laws of the British Virgin Islands, the United States of America, any State thereof or the District of Columbia;
(ii) the Surviving Person (if other than such Subsidiary Guarantor) expressly assumes, by supplemental indenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Person, the due and punctual performance and observance of all the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of such Subsidiary Guarantor, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iv) and clauses (v) and (vi) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person, the Company or any of its Subsidiaries as a result of such transaction or series of transactions as having been Incurred by the Surviving Person, the Company or such Subsidiary Guarantor at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ;
(v) immediately after giving effect to such transaction or series of transactions on a pro forma basis:
(1) the Company would be able to Incur at least US$1.00 of additional Debt under clause (1) of the first paragraph of Section 4.09, and
(2) the Parent would have a Fixed Charge Coverage Ratio that is not lower than the Fixed Charge Coverage Ratio of the Parent immediately preceding sentence prior to such transaction and would have a Leverage Ratio that is not higher than the Leverage Ratio of the Parent immediately prior to such transaction; and
(vi) immediately after giving effect to such transaction or series of transactions on a pro forma basis, the Parent shall have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Parent immediately prior to such transaction or series of transactions; and
(vii) the Company shall deliver, or cause to be delivered, to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction or series of transactions and the supplemental indenture, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied. The foregoing provisions (other than clause (iv)) shall not apply to (Xx) any sale, conveyance, transfer transaction or lease between or among series of transactions which constitute an Asset Sale if the Company and one has complied with Section 4.12 or more Subsidiaries of (y) the Company, (Y) any merger of the Company Parent into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (Hi-Tech Wealth Inc.)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company's assets (determined on a consolidated basis for the Company and the Company's Restricted Subsidiaries) to any other Person, unless Person unless: (i) either (1) the Company shall be the surviving or continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Company's Restricted Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes, according to their tenor, this Indenture and the due and punctual performance and observance Registration Rights Agreement on the part of all other obligations to the Holders and the Trustee under the Indenture or under the Notes Company to be performed or observed by the Companyobserved; and (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), 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 4.12; (iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and (iv) the Company 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, conveyanceassignment, transfer or transfer, lease, no Default shall 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 occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizingbeen satisfied.
(b) Upon any consolidation For purposes of this Section 5.01, the Company with transfer (by lease, assignment, sale or merger otherwise, in a single transaction or series of the Company into any other Person, or any sale, conveyance, transfer or lease transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation Capital Stock of which constitutes all or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from substantially all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name properties and assets of the Company, shall be deemed to be the transfer of all or in its own name; and any act or proceeding by any provision substantially all of the Indenture required or permitted to be done by the Board of Directors or any officer properties and assets of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedCompany.
(c) The TrusteeNotwithstanding clauses (ii), subject (iii) and (iv) of paragraph (a) of this Section 5.01, (i) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or leaseCompany, and (ii) EHI may merge with (A) Elgar at any such assumptiontime following the Issue Date, complies or (B) an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction.
(d) Notwithstanding the foregoing, the merger of MergerCo with and into EHI as contemplated by the applicable provisions of Recapitalization Agreement on the IndentureIssue Date shall be permitted.
Appears in 1 contract
Samples: Indenture (Power Ten)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, as sign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company's assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless Person unless: (i) either (1) the Company shall be the surviving or continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Restricted Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes, according to their tenor, Securities and the due and punctual performance and observance of all other obligations to every covenant of the Holders Securities, this Indenture and the Trustee under Registration Rights Agreement on the Indenture or under part of the Notes Company to be performed or observed by the Companyobserved; and (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Company or such Surviving Entity, as the case may be, (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 at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.04; (iii) immediately before and immedi- ately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and (iv) the Company 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, conveyanceassignment, transfer or transfer, lease, no Default shall 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 occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizingbeen satisfied.
(b) Upon any consolidation For purposes of the Company with foregoing, the transfer (by lease, assignment, sale or merger otherwise, in a single transaction or series of the Company into any other Person, or any sale, conveyance, transfer or lease transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation Capital Stock of which constitutes all or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from substantially all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name properties and assets of the Company, shall be deemed to be the transfer of all or in its own name; and any act or proceeding by any provision substantially all of the Indenture required or permitted to be done by the Board of Directors or any officer properties and assets of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedCompany.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (Sheffield Steel Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not merge or consolidate with or merge into any other Person entity (other than a merger or consolidation of a Restricted Subsidiary with or into the Company) or in one transaction or a series of related transactions sell, convey, transfer assign, transfer, lease or lease otherwise dispose of all or substantially all of its assets to any other PersonProperty, unless determined on a consolidated basis, unless:
(1i) the Person entity formed by or surviving any such consolidation or into which merger (if the Company is merged not the surviving entity) or the Person to which such sale, conveyanceassignment, transfer transfer, lease or lease conveyance is made shall (the “Successor”)
(A) shall be incorporated or otherwise a Person (other than an individual) organized and existing under the laws of the United States, any state States of America or a State thereof or the District of Columbia, Columbia and (B) such Person expressly assumeassumes, by supplemental indenture, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasePerson, the due and punctual payment of the principal of and interest and principal, premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all other the covenants, conditions and obligations to the Holders and the Trustee under the Indenture or under the Notes and this Indenture to be performed or observed by the Company; and
(B) the Successor shall have all Gaming Licenses required to be obtained by such Successor;
(ii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all of the Company’s Property, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iii) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis, no Default or Event of Default shall have occurred and be continuing; and
(2iv) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis (including, mergerwithout limitation, any Indebtedness Incurred or anticipated to be Incurred in connection with such transaction or series of transactions), either (x) the Company or the Successor, as the case may be, would be able to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.08(a) or (y) the Company’s Consolidated Fixed Charge Coverage Ratio would be equal to or greater than the Company’s Consolidated Fixed Charge Coverage Ratio immediately prior to such transaction; provided that, to the extent the Company is conducting its business in multiple segments, the sale, conveyance, transfer or lease, no Default shall have occurred and be continuing. Clause (2) disposition of the immediately preceding sentence any one such segment shall not apply be deemed to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries constitute “substantially all” of the Company’s Property, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which determined on a consolidated basis; provided that such sale, conveyance, transfer or lease disposition (i) is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture otherwise in compliance with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the this Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture(ii) is not, in the name reasonable determination of the Company, or in its own name; and any act or proceeding by any provision of expected to materially adversely affect the Indenture required or permitted to be done by the Board of Directors or any officer ability of the Company may be done with like force and effect by to make interest or principal payments on the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedNotes.
(cb) The TrusteeNo Guarantor may sell or otherwise dispose of all or substantially all of its assets to, subject or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other than the Company or another Guarantor, unless:
(i) immediately after giving effect to such transaction, no Default or Event of Default exists; and
(ii) either (A) the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger unconditionally assumes all the obligations of that Guarantor under its Note Guarantee and this Indenture pursuant to a supplemental indenture satisfactory to the provisions Trustee; or (B) the Net Proceeds of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared such sale or other disposition are applied in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture4.09.
Appears in 1 contract
Samples: Indenture (Everi Holdings Inc.)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or a series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company's assets (determined on a consolidated basis for the Company and its assets Restricted Subsidiaries), whether as an entirety or substantially as an entirety to any other Person, unless Person unless:
(i) either (1) the Company shall be the surviving or continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to which such the Person that acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Company's Restricted Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise organized an entity or- ganized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under every covenant of the Notes and this Indenture on the part of the Company to be performed or observed by the Company; and observed;
(2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), 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 4.12;
(iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and
(iv) the Company 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, conveyanceassignment, transfer or 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.
(b) For purposes of this Section 5.01, 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 and assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties or assets of the Company, will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(c) 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 4.15) 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 assumes by supplemental indenture all of the obligations of the Guarantor on its Guarantee; (ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Clause ; and (2iii) 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 immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer first paragraph of this Section 5.01. Any merger or lease between or among consolidation of a Guarantor with and into the Company and one (with the Company being the surviving entity) or more Subsidiaries of another Guarantor need not comply with clause (a) above. Notwithstanding anything in this Section 5.01 to the Companycontrary, (Ya) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into may merge with an Affiliate of the Company that has no material assets or liabilities and that is incorporated or organized solely for the purpose of reincorporating or reorganizing the Company reincorporating in another state of the United States or reorganizing.
the District of Columbia to realize tax benefits without complying with clause (ii) of the first paragraph of this covenant and (b) Upon any consolidation transaction characterized as a merger under applicable state law where each of the Company with or 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 the transfer of assets by the Company into any other Personor a Restricted Subsidiary, or any sale(y) an Investment, conveyance, transfer or lease if the result of all or substantially all such transaction is the acquisition of the assets of by the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedRestricted Subsidiary.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will shall not consolidate with or merge with or into any other Person or, directly or indirectly, sell, conveylease, transfer assign, transfer, or lease convey all or substantially all of its assets (computed on a consolidated basis), to any other Personanother Person or group of Persons acting in concert, whether in a single transaction or through a series of related transactions, unless (1i) the Person formed by such consolidation or into which either (a) the Company is merged the continuing Person or to which such sale(b) the resulting, conveyancesurviving, transfer or lease transferee entity is made shall (A) be incorporated or otherwise a corporation organized under the laws of the United States, any state thereof thereof, or the District of Columbia, and shall expressly assume all of the obligations of the Company under this Indenture, the Parent Guarantee and the Security Documents by appropriate documents supplemental hereto and thereto, executed and delivered to the Trustee on or prior to the consummation of such transaction, in form satisfactory to the Trustee; (Bii) no Default or Event of Default shall exist or shall occur immediately after giving effect to such transaction; (iii) immediately after giving effect to such transaction on a pro forma basis, the Net Worth of the resulting, surviving or transferee entity is at least equal to the Net Worth of the Company immediately prior to such transaction; and (iv) except for a consolidation or merger of the Company with or into any Wholly Owned Restricted Subsidiary (including the Issuer), the resulting, surviving or transferee entity would immediately thereafter be permitted to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12(a). For purposes of this Section 5.01, the Consolidated Fixed Charge Coverage Ratio shall be determined on a pro forma consolidated basis (giving effect to the transaction) for the Reference Period immediately preceding such transaction. The Issuer shall not consolidate with or merge with or into any other Person, or, directly or indirectly, sell, lease, assign, transfer, or convey all or substantially all of its assets (computed on a consolidated basis), to another Person or group of Persons acting in concert, whether in a single transaction or through a series of related transactions, unless (i) either (a) the Issuer is the continuing Person or (b) the resulting, surviving, or transferee entity is a corporation organized under the laws of the United States, any state thereof, or the District of Columbia, and shall expressly assume, assume all of the obligations of the Issuer under this Indenture and the Notes by a supplemental indenture, executed and delivered by such Person to the Trustee on or prior to the consummation of such transaction, in form satisfactory to the Trustee; (ii) no Default or simultaneously Event of Default shall exist or shall occur immediately after giving effect to such transaction; (iii) immediately after giving effect to such transaction on a pro forma basis, the Net Worth of the resulting, surviving or transferee entity is at least equal to the Net Worth of the Issuer immediately prior to such transaction; (iv) except for a consolidation or merger of the Issuer with or into the Company or any Wholly Owned Restricted Subsidiary, the resulting, surviving or transferee entity would immediately thereafter be permitted to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12(a); (v) the Company shall have executed and delivered to the Trustee, in form satisfactory to the Trustee, a supplemental indenture confirming its obligation to pay the principal of, premium, if any, and interest on the Notes pursuant to the Parent Guarantee and to perform all its covenants hereunder and under the Parent Guarantee; (vi) each Subsidiary Guarantor shall have executed and delivered to the Trustee, in form satisfactory to the Trustee, a supplemental indenture confirming its obligations to pay the principal of, premium, if any, and interest on the Notes pursuant to its Subsidiary Guarantee; (vii) the Trustee shall have received an Opinion of Counsel to the effect that such consolidation, merger, sale, assignment, conveyance, transfer or lease will not result in the Issuer being required to make any deduction for or on account of taxes from payments made under or in respect of the Notes. For purposes of this Section 5.01, the Consolidated Fixed Charge Coverage Ratio shall be determined on a pro forma consolidated basis (giving effect to the transaction) for the Reference Period immediately preceding such transaction. The Company shall not permit or allow any Subsidiary Guarantor to consolidate with or merge with or into any other Person or, directly or indirectly, sell, lease, assign, transfer, or convey all or substantially all of its assets (computed on a consolidated basis), to another Person or group of Persons acting in concert, whether in a single transaction or through a series of related transactions, unless (i) the due Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) or the transferee entity (A) is a corporation organized and punctual payment existing under the laws of the principal United States of America, any state thereof, or the District of Columbia and interest and premium, if any, on (B) expressly assumes all the Notesobligations of such Subsidiary Guarantor pursuant to a supplemental indenture, according to their tenor, and the due and punctual performance and observance of all other obligations in a form satisfactory to the Holders and the Trustee under the Indenture or Trustee, under the Notes and this Indenture, (ii) immediately before and after giving effect to be performed such transaction, no Default or observed by the Company; Event of Default exists and (2) immediately after giving effect to such transaction, the resulting, surviving or transferee entity could incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12(a), and (iii) such Subsidiary Guarantor or the Person formed by or surviving any such consolidation or merger or the transferee entity on a pro forma basis will have Net Worth (immediately after the transaction) equal to or greater than the Net Worth of such Subsidiary Guarantor immediately preceding the transaction; provided that, the foregoing shall not apply to a merger, consolidation, sale or other such transaction between Subsidiary Guarantors, between the Issuer and any Subsidiary Guarantor or between the Company and any Subsidiary Guarantor. In connection with any consolidation, merger, sale, conveyancelease, assignment, transfer or lease, no Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company conveyance that is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 this Section 5.01, the Company shall deliver to the Trustee, in form and 10.02 of substance satisfactory to the Existing IndentureTrustee, may receive an Officers' Certificate and an Opinion of Counsel, prepared each stating that such transaction and the supplemental indenture (or, in accordance with Section 15.01 the case of the Existing IndentureCompany, as conclusive evidence any other supplemental document delivered pursuant to this Section 5.01) comply with this Section 5.01 and that any all conditions precedent in this Indenture provided for in relation to such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenturetransaction have been complied with.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not shall not, in a single transaction or a series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company's assets (determined on a consolidated basis for the Company and its assets Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless Person unless:
(i) either (1) the Company shall be the surviving or continuing entity or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to which such the Person that acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Company's Subsidiaries substantially as an entirety (the "Surviving Entity") (x) ---------------- shall (A) be incorporated or otherwise an entity organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all the Senior Notes and the performance of every covenant of the Senior Notes, according to their tenor, this Indenture and the due and punctual performance and observance Registration Rights Agreement on the part of all other obligations to the Holders and the Trustee under the Indenture or under the Notes Company to be performed or observed observed, as the case may be;
(ii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the Companytransaction), no Default or Event of Default shall have occurred or be continuing; and and
(2iii) immediately after giving effect to the transaction or series of transactions, the Company or the surviving entity, as applicable, and their respective banking and thrift subsidiaries, as applicable, shall be in compliance with all applicable regulatory capital requirements;
(iv) immediately after giving effect to the transaction or series of transactions, the Company or the surviving entity, as applicable, could incur at least $1.00 of additional Indebtedness without violating Section 4.16(b) hereof; 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, conveyanceassignment, transfer or transfer, lease, no Default shall 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 occurred been satisfied.
(b) For purposes of this Section 5.01 and be continuing. Clause the definition of "Change of ------------ Control" under this Indenture, the transfer (2by lease, assignment, sale or otherwise, in a single transaction or series of related transactions) of all or substantially all of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company properties and assets of one or more Subsidiaries of the Company, (Y) any merger the Capital Stock of which constitutes all or substantially all of the Company into any Subsidiary properties or assets of the Company or (Z) any merger of Company, will be deemed to be the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the properties and assets of the Company unless such transfer is to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer one or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedmore Wholly-Owned Subsidiaries.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company's assets (determined on a consolidated basis for the Company and its assets Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless Person unless: (i) either (1) the Company shall be the surviving or con- tinuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Company's Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated a corporation, limited liability company or otherwise similar entity organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest and Additional Interest, if any, on all of the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under every covenant of the Notes and this Indenture on the part of the Company to be performed or observed by the Companyobserved; and (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Company or such Surviving Entity, as the case may be, (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 at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.04; (iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing and (iv) the Company 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, conveyanceassignment, transfer or transfer, lease, no Default shall 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 occurred and be continuingbeen satisfied. Clause For purposes of the foregoing, the transfer (2by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer properties or lease between or among the Company and assets of one or more Subsidiaries of the Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The foregoing provisions shall not apply to (w) any transfer of the properties or assets of a Subsidiary of the Company to the Company or to a Wholly Owned Restricted Subsidiary of the Company, (Yx) any merger of a Restricted Subsidiary of the Company into the Company or (y) any merger of the Company into any a Restricted Subsidiary of the Company or Company. In addition, the requirements of clause (Zii)(2) of the first paragraph of this Section 5.01 shall not apply to any merger into the Company of a Person that (i) owns more than 50% of the outstanding Common Stock of the Company into an Affiliate and (ii) has no Indebtedness (other than any guarantees of Indebtedness of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedSubsidiary Guarantors).
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The ---------------------------------------- Company will not shall not, in any transaction or series of related transactions, merge or consolidate with or merge into, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets to, any Person or Persons, and the Company shall not permit any Subsidiary of the Company to enter into any such transaction or series of transactions if such transaction or series of transactions, in the aggregate, would result in a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the properties and assets of the Company or of the Company and its Subsidiaries on a consolidated basis to any other Person or sell, convey, transfer or lease all or substantially all its assets to any other PersonPersons, unless at the time of and immediately after giving effect thereto (1i) either (A) if the transaction or transactions is a merger or consolidation, the Company shall be the surviving Person of such merger or consolidation, or (B) the Person formed by such consolidation or into which the Company or such Subsidiary is merged or to which the properties and assets of the Company or such saleSubsidiary, conveyanceas the case may be, transfer or lease is made shall (A) be incorporated substantially as an entirety, are sold, assigned, transferred, leased or otherwise disposed of (any such surviving Person or transferee Person being the "Surviving Entity") shall be a corporation organized and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia, Columbia and (B) shall expressly assume, assume by a supplemental indenture, indenture executed and delivered by such Person prior to or simultaneously with such consolidationthe Trustee, merger, sale, conveyance, transfer or lease, in form and substance satisfactory to the due Trustee and punctual payment the holders of a majority in aggregate principal amount of the principal of and interest and premiumNotes then outstanding, if any, on all the Notes, according to their tenor, and obligations of the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or Company under the Notes to be performed or observed by the Companyand this Indenture, and in each case, this Indenture shall remain in full force and effect; and (2ii) immediately after giving effect to such consolidationtransaction or series of related transactions on a pro forma basis (including, mergerwithout limitation, sale, conveyance, transfer any Indebtedness Incurred or lease, no Default shall have occurred and anticipated to be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company Incurred in connection with or merger in respect of the Company into any other Person, such transaction or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.series
Appears in 1 contract
Samples: Indenture (Telegroup Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not, and will not permit any of its Subsidiaries to, in a single transaction or series of related transactions, consolidate or merge with or merge into any (other Person than the consolidation or merger of a Wholly Owned Subsidiary of the Company with another Wholly Owned Subsidiary of the Company or into the Company), whether or not the Company or such Subsidiary is the surviving corporation, or directly and/or indirectly through the Company's Subsidiaries sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of all or substantially all of the properties or assets of the Company and its assets to Subsidiaries (determined on a consolidated basis for the Company and its Subsidiaries taken as a whole) in one or more related transactions to, another corporation, Person or entity unless
(i) either (A) the Company, in the case of a transaction involving the Company, or such Subsidiary, in the case of a transaction involving any other Personof the Company's Subsidiaries, unless is the surviving corporation or (1B) in the case of a transaction involving the Company, the entity or the Person formed by or surviving any such consolidation or into which merger (if other than the Company is merged Company) or to which such sale, conveyanceassignment, transfer transfer, lease, conveyance or lease other disposition shall have been made is made shall (A) be incorporated a corporation organized or otherwise organized existing under the laws of the United StatesStates of America, any state thereof or the District of ColumbiaColumbia or Bermuda and expressly assumes all the obligations of the Company under the Notes and the Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee (the "Surviving Entity");
(ii) immediately prior to and after such transaction no Default or Event of Default exists;
(iii) the Company or, if other than the Company, the entity or Person formed by or surviving any such consolidation or merger, or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have a Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) expressly assumewill, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 3.13;
(iv) if, as a result of any such transaction, property or assets of the Company would become subject to a Lien securing Indebtedness not excepted from the provisions of this Indenture pursuant to Section 3.14, the Company or the Surviving Entity, as the case may be, shall have secured the Notes as required by such provisions;
(v) each Note Guarantor (including Persons that become Note Guarantors as a result of the transaction) shall have confirmed by supplemental indentureindenture that its Note Guarantee shall apply for the Obligations of the surviving entity in respect of the Indenture and the Notes; and
(vi) the Company shall have delivered to the Trustee an Officers' Certificate and, executed and delivered by such Person prior to except in the case of a merger of any of the Company's Subsidiaries into the Company or simultaneously with into a Wholly Owned Subsidiary of the Company, an opinion of counsel, each stating that such consolidation, merger, sale, conveyance, transfer lease or leasedisposition and any supplemental indenture with respect thereto, the due and punctual payment comply with all of the principal terms of this covenant and interest and premium, if any, on that all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect conditions precedent provided for in this provision relating to such consolidation, merger, sale, conveyance, transfer transaction or lease, no Default shall series of transactions have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizingbeen complied with.
(b) Upon any consolidation For purposes of the Company with foregoing, the transfer (by lease, assignment, sale or merger otherwise, in a single transaction or series of the Company into any other Person, or any sale, conveyance, transfer or lease transactions) of all or substantially all of the properties or assets of one or more Subsidiaries of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation Capital Stock of which constitutes all or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from substantially all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name properties and assets of the Company, shall be deemed to be the transfer of all or in its own name; and any act or proceeding by any provision substantially all of the Indenture required or permitted to be done by the Board of Directors or any officer properties and assets of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedCompany.
(c) The TrusteeEach Note Guarantor will not, subject to and the provisions Company will not cause or permit any Note Guarantor to, consolidate with or merge into, or sell or dispose of Sections 10.01 and 10.02 all or substantially all of its assets to, any Person (other than the Company) that is not a Note Guarantor unless:
(i) such Person (if such Person is the surviving entity) assumes all of the Existing Indenture, may receive obligations of such Note Guarantor in respect of its Note Guarantee by executing a supplemental indenture and providing the Trustee with an Officers' Certificate and Opinion of Counsel, prepared and such transaction is otherwise in compliance with the Indenture;
(ii) such Note Guarantee is to be released as provided under "Note Guarantees;" or
(iii) such sale or other disposition of substantially all of such Note Guarantor's assets is made in accordance with Section 15.01 3.9.
(d) In the event that the Surviving Entity under this Section 4.1 is organized or existing under Bermuda law,
(i) each payment by the Company under this Indenture shall, except as required by law, be made without withholding or deduction for or on account of any Taxes imposed by Bermuda or any political subdivision or taxing authority thereof or therein. If any Taxes are required to be withheld or deducted from any such payment, the Company shall pay such additional amounts as may be necessary to ensure that the net amount actually received by a Holder after such withholding or deduction is equal to the amount that the Holder would have received had no such withholding or deduction been required, provided, however, that no such additional amounts shall be payable in respect of any Taxes imposed by reason of the Existing IndentureHolder's failure to comply with the provisions of Section 4.1(d)(iii) hereof;
(ii) the Company shall pay all Taxes referred to in Section 4.1(d)(i) before penalties are payable or interest accrues thereon, as conclusive evidence that but if any such mergerpenalties are payable or interest accrues, salethe Company shall make payment thereof when due to the appropriate governmental authority. Within 30 days after each such payment of Taxes, conveyance the Company shall deliver to the Holders an official receipt or leasea certified copy thereof evidencing such payment, or, if no such receipt is issued to the Company, such other written evidence of such payment as the Company and the Trustee agree is appropriate;
(iii) the Holders agree to comply with any certification, identification, information, documentation or other reporting requirement if (a) such assumptioncompliance is required by law, complies regulation, administrative practice or an applicable treaty as a precondition to exemption from, or reduction in the rate of, deduction or withholding of any Taxes for which the Company is required to pay additional amounts pursuant to Section 4.1(d)(i) hereof and (b) at least 30 days prior to the first payment date with respect to which the applicable provisions Company shall apply this clause (iii), the Company shall have notified the Holder that the Holder will be required to comply with such requirement; and
(iv) for purposes of the IndentureSection 4.1(d)(i), (ii) and (iii), "Taxes" means any present or future taxes, levies, imposts, duties, charges, assessments or fees of any nature (including interest, penalties and additions thereto) that are imposed by Bermuda or any political subdivision or taxing authority thereof or therein.
Appears in 1 contract
Samples: Indenture (Dimon Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company's assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless 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 to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and the Restricted Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the NotesSecurities and the performance of every covenant of the Securities, according this Indenture and the Registration Rights Agreement on the part of the Company to their tenorbe 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 observance of all other obligations to the Holders and the Trustee obligation under the Indenture or under Security Documents on the Notes part of the Company to be performed or observed by the Company; and observed;
(2) immediately after giving effect to such consolidationtransaction on a pro forma basis and the assumption contemplated by clause (1)(B)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), mergerthe Company or such Surviving Entity, saleas the case may be, conveyanceshall be able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.03;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(y) above (including, transfer without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or leaseanticipated 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. Clause ; and
(24) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger the Surviving Entity shall have delivered to the Trustee and the Collateral Agent 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 Company into an Affiliate applicable provisions of the Company for the purpose of the Company reincorporating or reorganizingthis Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
(b) Upon any consolidation For purposes of the Company with foregoing, the transfer (by lease, assignment, sale or merger otherwise, in a single transaction or series of the Company into any other Person, or any sale, conveyance, transfer or lease transactions) of all or substantially all of the properties or assets of the Company to any other Person, in accordance with this Section 5.04one or more Restricted Subsidiaries, the Person formed by such consolidation Capital Stock of which constitutes all or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from substantially all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name properties and assets of the Company, shall be deemed to be the transfer of all or in its own name; and any act or proceeding by any provision substantially all of the Indenture required or permitted to be done by the Board of Directors or any officer properties and assets of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedCompany.
(c) The Trustee, subject 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 10.01 Section 4.12) will, and 10.02 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 Existing IndentureUnited 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 Trustee), may receive executed and delivered to the Trustee, the performance of every covenant of the Securities, this Indenture and the Registration Rights Agreement on the part of such Guarantor to be performed or observed;
(3) 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 Security Documents on the part of such 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 pro forma basis, the Company could satisfy the provisions of clause (a)(2) of this Section 5.01; and
(6) the Company shall have delivered to the Trustee and the Collateral Agent an Officers' Certificate and Opinion of Counsel, prepared each stating that such consolidation or merger and, if a supplemental indenture is required in accordance connection with Section 15.01 of the Existing Indenturesuch transaction, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies supplemental indenture comply with the applicable provisions of the Indenturethis Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
Appears in 1 contract
Samples: Indenture (Tenneco Automotive Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company's assets (determined on a consolidated basis for the Company and its assets to any other Person, unless Subsidiaries) unless: (i) either (1) the Company shall be the surviving or continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and its Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest and of, premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes, according to their tenor, this Indenture and the due and punctual performance and observance Registration Rights Agreement on the part of all other obligations to the Holders and the Trustee under the Indenture or under the Notes Company to be performed or observed by observed, as the Companycase may be; and (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Company or such Surviving Entity, as the case may be, (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 at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12 or (y) 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 Fixed Charge Coverage Ratio of the Company immediately prior to such transaction; (iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including, without limita- tion, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and (iv) 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, conveyanceassignment, transfer or 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 hereof and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
(b) For purposes of the 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 Subsidiaries of the Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(c) 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 Section 4.16) will not, and the Company will not cause or permit any Subsidiary Guarantor to, consolidate with or merge with or into any Person other than the Company or another Subsidiary Guarantor that is a Wholly Owned Subsidiary unless: (a) the entity formed by or surviving any such consolidation or merger (if other than the Subsidiary Guarantor) is a corporation organized and existing under the laws of the United States or any state thereof or the District of Columbia; (b) such entity assumes by execution of a supplemental indenture all of the obligations of the Subsidiary Guarantor under its Guarantee; (c) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Clause ; and (2d) 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 immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer first paragraph of this Section 5.01. Any merger or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company a Subsidiary Guarantor with or merger of the Company and into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (with the Company being the surviving entity) or any successor entity which shall theretofore have become such in the manner described in another Subsidiary Guarantor that is a Wholly Owned Subsidiary need only comply with clause (iv) (and not clauses (i) (ii) or (iii)) of paragraph (a) of this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated5.01.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or a series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company's assets (determined on a consolidated basis for the Company and its assets Restricted Subsidiaries), whether as an entirety or substantially as an entirety to any other Person, unless Person unless:
(i) either (1) the Company shall be the surviving or continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to which such the Person that acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Company's Restricted Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise an entity organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under every covenant of the Notes and this Indenture on the part of the Company to be performed or observed by the Company; and observed;
(2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (i) (2) (y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Company or such Surviving Entity, as the case may be, -82- shall be able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12;
(iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i) (2) (y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and
(iv) the Company 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, conveyanceassignment, transfer or 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.
(b) For purposes of this Section 5.01, 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 and assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties or assets of the Company, will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(c) 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 4.15) 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 assumes by supplemental indenture all of the obligations of the Guarantor on its Guarantee; (ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Clause ; and (2iii) 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 immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer first paragraph of this Section 5.01. Any merger or lease between or among consolidation of a Guarantor with and into the Company and one (with the Company being the surviving entity) or more Subsidiaries of another Guarantor need not comply with clause (a) above. Notwithstanding anything in this Section 5.01 to the Companycontrary, (Ya) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into may merge with an Affiliate of the Company that has no material assets or liabilities and that is incorporated or organized solely for the purpose of reincorporating or reorganizing the Company reincorporating in another state of the United States or reorganizing.
the District of Columbia to realize tax benefits without complying with clause (ii) of the first paragraph of this covenant and (b) Upon any consolidation transaction characterized as a merger under applicable state law where each of the Company with or 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 the transfer of assets by the Company into any other Personor a Restricted Subsidiary, or any sale(y) an Investment, conveyance, transfer or lease if the result of all or substantially all such transaction is the acquisition of the assets of by the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedRestricted Subsidiary.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company's assets (determined on a consolidated basis for the Company and its assets to any other Person, unless Subsidiaries) unless: (i) either (1) the Company shall be the surviving or continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Company's Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia or the federal laws of Canada or any province thereof and (By) shall expressly assumeassume as primary obligor, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes, according to their tenor, this Indenture and the due and punctual performance and observance Registration Rights Agreement on the part of all other obligations to the Holders and the Trustee under the Indenture or under the Notes Company to be performed or observed by observed, as the Companycase may be; and (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (i) (2) (y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Company or such Surviving Entity, as the case may be, (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 at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12; (iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i) (2) (y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and (iv) the Company or the Surviving Entity, as the case may be, shall have delivered to the Trustee an officer's certificate and an opinion of counsel, each stating that such consolidation, merger, sale, conveyanceassignment, transfer or 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.
(b) For purposes of the 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 Subsidiaries of the Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(c) 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 Section 4.15) will not, and the Company will not cause or permit any Subsidiary Guarantor to, consolidate with or merge with or into any Person other than the Company or another Subsidiary Guarantor that is a Wholly Owned Subsidiary unless: (a) the entity formed by or surviving any such consolidation or merger (if other than the Subsidiary 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 or the federal laws of Canada or any province thereof; (b) such entity assumes by execution of a supplemental indenture all of the obligations of the Subsidiary Guarantor under its Guarantee; (c) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Clause ; and (2d) immediately after giving effect to such transaction and the use of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power ofnet proceeds therefrom on a pro forma basis, the Company under could satisfy the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case provisions of clause (ii) of paragraph (a) of this Section 5.01. Any merger or consolidation of a lease, the predecessor Company shall be relieved of Subsidiary Guarantor with and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, into the Company (with the Company being the surviving entity) or any successor entity which shall theretofore have become such in the manner described in another Subsidiary Guarantor that is a Wholly Owned Subsidiary need only comply with clause (iv) of paragraph (a) of this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated5.01.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (3003969 Nova Scotia LTD)
Merger, Consolidation and Sale of Assets. (a) The Company will not shall not, in a single transaction or a series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, convey, transfer or lease otherwise dispose of (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 assets (determined on a consolidated basis for the Company and its assets to any other PersonRestricted Subsidiaries), unless unless:
(i) either (1) the Company shall be the surviving or continuing entity or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made merger shall (A) be incorporated or otherwise an entity organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, and Columbia (Bthe “Surviving Entity”)
(ii) expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premiumSurviving Entity, if any, on all the Notesexpressly assumes, according to their tenor, by supplemental indenture (in form and the due and punctual performance and observance of all other obligations substance satisfactory to the Holders Trustee), all rights and obligations of the Trustee under the Indenture or Company under the Notes to be performed or observed by and the Company; and Indenture;
(2iii) immediately after giving effect to such consolidationtransaction including the assumption of the Notes, mergerthe Company or the Surviving Entity shall be able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12;
(iv) immediately before and after giving effect to such transaction, including the assumption of the Notes, no Default or Event of Default occurred or exists; and
(v) the Company or the Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent in this Indenture relating to such transaction have been satisfied.
(b) For purposes of this Section 5.01, 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 and assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties or assets of the Company, will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(c) 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 4.15) 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, conveyance, transfer or lease, conveyance or other disposition shall have been made assumes by supplemental indenture all of the obligations of the Guarantor on its Guarantee; (ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Clause ; and (2iii) immediately after giving effect to such transaction and the use of the immediately preceding sentence shall not apply to (X) any salenet proceeds therefrom on a pro forma basis, conveyance, transfer or lease between or among the Company could satisfy the provisions of Section 5.01(a)(iii). Any merger or consolidation of a Guarantor with and one into the Company (with the Company being the surviving entity) or more Subsidiaries of another Guarantor need not comply with clause (a) above. Notwithstanding anything in this Section 5.01 to the Companycontrary, (Ya) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into may merge with an Affiliate of the Company that has no material assets or liabilities and that is incorporated or organized solely for the purpose of reincorporating or reorganizing the Company reincorporating in another state of the United States or reorganizing.
the District of Columbia without complying with Section 5.01(a)(iii) and (b) Upon any consolidation transaction characterized as a merger under applicable state law where each of the Company with or 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 the transfer of assets by the Company into any other Personor a Restricted Subsidiary, or any sale(y) an Investment, conveyance, transfer or lease if the result of all or substantially all such transaction is the acquisition of the assets of by the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedRestricted Subsidiary.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, amalgamate, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company’s assets (determined on a consolidated basis for the Company and the Company’s Restricted Subsidiaries), whether as an entirety or substantially as an entirety, to any other Person, unless 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 “Surviving Entity”):
(i) shall be an entity organized or validly existing under the laws of Canada (or any province thereof), laws of the United States or any State thereof or the District of Columbia; provided that in the case where the Surviving Entity is not a corporation, a co-obligor of the Notes is a corporation shall be an entity organized or validly existing under the laws of Canada (or any province thereof), laws of the United States or any State thereof or the District of Columbia; and
(ii) shall expressly assume, by supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest on all of the Notes and the performance 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 Section 5.01(a)(1)(B)(ii) (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Company or such Surviving Entity, as the case may be, (a) would be able to incur at least $1.00 of additional Indebtedness pursuant to the Section 4.09(a) or (b) the Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries would not be lower than it was immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by Section 5.01(a)(1)(B)(ii) above, if applicable (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and
(4) the Company or the Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such amalgamation, 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. For purposes of the 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, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(b) Upon any amalgamation, consolidation, combination or merger or any transfer of all or substantially all of the assets of the Company in accordance with Section 5.01(a), in which the Company is not the continuing corporation, the successor Person formed by such consolidation or into which the Company is amalgamated or merged or to which such sale, conveyance, lease or transfer or lease is made shall (A) be incorporated or otherwise organized under the laws of the United States, any state thereof or the District of Columbia, and (B) expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, no Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Indenture Notes with the same effect as if such successor Person surviving entity had been named as the Company in the Indenture, such and thereafter, except in the case of a lease, the predecessor Company all financial information and reports required by this Indenture shall be relieved of provided by and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time for such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedsurviving entity.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. The Company shall not, directly or indirectly, (a) The Company will not consolidate or merge with or merge into any other another Person (whether or not the Company is the surviving entity); or (b) sell, conveyassign, transfer transfer, convey or lease otherwise dispose of all or substantially all of the properties and assets of the Company and its assets Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any other another Person, unless unless:
(1) either:
(i) the Company is the surviving entity; or
(ii) the Person formed by or surviving any such consolidation or into which merger (if other than the Company is merged Company) or to which such sale, conveyanceassignment, transfer transfer, conveyance or lease other disposition has been made is made shall (A) be incorporated a Person organized or otherwise organized existing under the laws of the United StatesStates of America, any state thereof of the United States of America or the District of Columbia;
(2) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Indenture and any Collateral Documents to which the Company is a party pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee and in connection therewith shall execute and deliver such other agreements, cause such instruments and Uniform Commercial Code financing statements to be filed and recorded in such jurisdictions and take such other actions as may be required by applicable law to continue the validity and enforceability, and perfect or continue the perfection, of the Note Lien created under the Collateral Documents on the Note Collateral owned by or transferred to such Person;
(B3) expressly assumeimmediately before and after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(4) the Company or the Person formed by supplemental indentureor surviving any such consolidation or merger (if other than the Company), executed or to which such sale, assignment, transfer, conveyance or other disposition has been made will, on the date of such transaction after giving pro forma effect thereto and delivered by such Person prior any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period:
(i) have Consolidated Net Worth immediately after the transaction equal to or simultaneously with greater than the Consolidated Net Worth of the Company immediately preceding the transaction; and
(ii) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.12; and
(5) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consummation of such consolidation, merger, sale, conveyanceassignment, transfer transfer, conveyance or leaseother disposition and, if such an assumption is required in connection with such transaction, such assumption, complies with the due applicable provisions of this Indenture and punctual payment that all conditions precedent in this Indenture relating to such transaction have been satisfied. The conditions set forth in clause (4) of the principal first paragraph of and interest and premium, if any, on all this Section 5.01 will not apply to:
(1) a merger of the Notes, according to their tenor, and Company with an Affiliate solely for the due and punctual performance and observance purpose of all other obligations to reincorporating the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the CompanyCompany in another jurisdiction; and or
(2) immediately after giving effect to such any merger, consolidation, merger, sale, conveyanceassignment, transfer transfer, conveyance or leaseother disposition of properties and assets, no Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease solely between or among the Company and one or more Restricted Subsidiaries that are Guarantors. The Company shall not, directly or indirectly, lease all or substantially all of the Company, (Y) any merger properties and assets of the Company into any Subsidiary of the Company and its Restricted Subsidiaries, taken as a whole, in one or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into more related transactions, to any other Person. For purposes of the foregoing, the disposition (by lease, assignment, sale or any saleotherwise, conveyance, transfer in a single transaction or lease series of transactions) of all or substantially all of the properties and assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation one or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or in its own name; and any act or proceeding by any provision substantially all of the Indenture required or permitted properties and assets of the Company, shall be deemed to be done by the Board transfer of Directors all or any officer substantially all of the Company may be done with like force properties and effect by the like board or officer of any Person that shall at the time be the successor assets of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedCompany.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will shall not merge, consolidate or amalgamate with or merge into any other Person (other than a merger of a Wholly Owned Restricted Subsidiary into the Company) or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all its assets to Property in any other Person, unless one transaction or series of transactions unless:
(1i) the Company shall be the surviving Person (the "SURVIVING PERSON") or the Surviving Person (if other than the Company) formed by such merger, consolidation or into which the Company is merged amalgamation or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall (A) be incorporated or otherwise a corporation organized and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia, and ;
(Bii) the Surviving Person (if other than the Company) expressly assumeassumes, by supplemental indentureindenture in form reasonably satisfactory to the Trustee, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leaseSurviving Person, the due and punctual payment of the principal of and interest of, and premium, if any, on and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under the conditions of this Indenture or under the Notes to be performed or observed by the Company; ;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of the Company, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (2and treating, for purposes of this clause (iv) and clause (v) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person or any Restricted Subsidiary as a result of such transaction or series of transactions as having been Incurred by the Surviving Person or such Restricted Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing;
(v) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis, the Company or the Surviving Person, as the case may be, would be able to Incur at least $1.00 of additional Debt under Section 4.09(a)(i); and
(vi) the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such transaction and the supplemental indenture, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction have been satisfied.
(b) The Company shall not permit any Subsidiary Guarantor to merge, consolidate or amalgamate with or into any other Person (other than a merger of a Wholly Owned Restricted Subsidiary into the Company or a Subsidiary Guarantor) or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all its Property in any one transaction or series of transactions unless:
(i) the Surviving Person (if not such Subsidiary Guarantor) formed by such merger, consolidation or amalgamation or to which such sale, conveyancetransfer, transfer or assignment, lease, conveyance or disposition is made shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia;
(ii) the Surviving Person (if other than such Subsidiary Guarantor) expressly assumes, by supplemental indenture in form reasonably satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Person, the due and punctual performance and observance of all the obligations of such Subsidiary Guarantor under its Subsidiary Guaranty;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of such Subsidiary Guarantor, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iv) and clause (v) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person, the Company or any Restricted Subsidiary as a result of such transaction or series of transactions as having been Incurred by the Surviving Person, the Company or such Restricted Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.;
(bv) Upon any consolidation immediately after giving effect to such transaction or series of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power oftransactions on a pro forma basis, the Company would be able to Incur at least $1.00 of additional Debt under the Indenture with the same effect as if such successor Person had been named as Section 4.09(a)(i); and
(vi) the Company in will deliver, or cause to be delivered, to the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the IndentureTrustee, in form and substance reasonably satisfactory to the name Trustee, an Officers' Certificate and an Opinion of the CompanyCounsel, or each stating that such transaction and such Subsidiary Guaranty, if any, in its own name; respect thereto comply with this covenant and any act or proceeding by any provision of the Indenture required or permitted that all conditions precedent herein provided for relating to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore transaction have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedbeen satisfied.
(c) The Trustee, subject foregoing clause (b) (other than clause (b)(iv) above) shall not apply to any transactions which constitute an Asset Sale if the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance Company has complied with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture4.12.
Appears in 1 contract
Samples: Indenture (Aviall Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company’s assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless 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 to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and the Restricted Subsidiaries substantially as an entirety (the “Surviving Entity”) (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest and premium, if any, and interest on all of the Notes, according to their tenor, Securities and the due and punctual performance and observance of all other obligations to every covenant of the Holders Securities, this Indenture and the Trustee under Registration Rights Agreement on the Indenture or under part of the Notes Company to be performed or observed by the Company; and observed;
(2) immediately after giving effect to such consolidationtransaction on a pro forma basis and the assumption contemplated by clause (1)(B)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), mergerthe Company or such Surviving Entity, saleas the case may be, conveyanceshall be able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.03;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(y) above (including, transfer without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or leaseanticipated 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. Clause ; and
(24) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger 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 Company into an Affiliate applicable provisions of the Company for the purpose of the Company reincorporating or reorganizingthis Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
(b) Upon any consolidation For purposes of the Company with foregoing, the transfer (by lease, assignment, sale or merger otherwise, in a single transaction or series of the Company into any other Person, or any sale, conveyance, transfer or lease transactions) of all or substantially all of the properties or assets of the Company to any other Person, in accordance with this Section 5.04one or more Restricted Subsidiaries, the Person formed by such consolidation Capital Stock of which constitutes all or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from substantially all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name properties and assets of the Company, shall be deemed to be the transfer of all or in its own name; and any act or proceeding by any provision substantially all of the Indenture required or permitted to be done by the Board of Directors or any officer properties and assets of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedCompany.
(c) The Trustee, subject 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 10.01 Section 4.12) will, and 10.02 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 Existing IndentureUnited 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 Trustee), may receive executed and delivered to the Trustee, the performance of every covenant of the Securities, this Indenture and the Registration Rights Agreement 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;
(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 (a)(2) of this Section 5.01; and
(5) the Company shall have delivered to the Trustee an Officers’ Certificate and Opinion of Counsel, prepared each stating that such consolidation or merger and, if a supplemental indenture is required in accordance connection with Section 15.01 of the Existing Indenturesuch transaction, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies supplemental indenture comply with the applicable provisions of the Indenturethis Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
Appears in 1 contract
Samples: Indenture (Tenneco Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company's assets (determined on a consolidated basis for the Company and the Company's Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless Person unless: (i) either (1) the Company shall be the surviving or continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Company's Restricted Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest and premium, if any, on all of the Notes and the performance of every covenant of the Notes, according to their tenor, the Indenture and the due and punctual performance and observance Registration Rights Agreement on the part of all other obligations to the Holders and the Trustee under the Indenture or under the Notes Company to be performed or observed by the Companyobserved; and (2ii) immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), 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 4.12; (iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness in- 77 -69- curred 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; and (iv) the Company 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, conveyanceassignment, transfer or transfer, lease, no Default shall 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 occurred and be continuingbeen satisfied. Clause Notwithstanding clause (2ii) of the immediately preceding sentence shall not apply to sentence, (Xa) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Restricted Subsidiary of the Company may consolidate with, merge into or (Z) any merger transfer all or part of its properties and assets to the Company into and (b) the Company may merge with an Affiliate of the Company incorporated solely for the purpose of reincorporating the Company reincorporating or reorganizing.
(b) Upon any consolidation in another jurisdiction. For purposes of the Company with foregoing, the transfer (by lease, assignment, sale or merger otherwise, in a single transaction or series of the Company into any other Person, or any sale, conveyance, transfer or lease transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation Capital Stock of which constitutes all or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from substantially all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name properties and assets of the Company, shall be deemed to be the transfer of all or in its own name; and any act or proceeding by any provision substantially all of the Indenture required or permitted to be done by the Board of Directors or any officer properties and assets of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedCompany.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (McMS Inc)
Merger, Consolidation and Sale of Assets. (a) The ---------------------------------------- Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company's assets (determined on a consolidated basis for the Company and the Company's Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless Person unless: (i) either (1) the Company shall be the surviving or continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Company's Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indenturea supplement hereto (in form and substance satisfactory to the Paying Agent), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Paying Agent, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under every covenant of the Notes and this Agreement on the part of the Company to be performed or observed by the Companyobserved; and (2ii) immediately after giving effect to such transaction and the assumption contemplated by Section 5.13(i)(2)(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), the Company or such Surviving Entity, as the case may be, shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction; (iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by Section 5.13(i)(2)(y) (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and (iv) the Company or the Surviving Entity shall have delivered to the Paying Agent an Officers' Certificate and an opinion of counsel, each stating that such consolidation, merger, sale, conveyanceassignment, transfer or transfer, lease, no Default shall conveyance or other disposition and, if a supplement to this Agreement is required in connection with such transaction, such supplement complies with the applicable provisions of this Agreement and that all conditions precedent in this Agreement relating to such transaction have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizingbeen satisfied.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall The Surviving Entity will succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenturethis Agreement, and thereafterbut, except in the case of a lease, the predecessor Company shall be relieved lease of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in substantially all its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such leaseassets, the Company (or any successor entity which shall theretofore have become such in will not be released from the manner described in this Section 5.04) shall be relieved obligation to pay the principal of and discharged from all obligations and covenants under interest on the Indenture and the Notes and may thereupon be dissolved and liquidatedNotes.
(c) The TrusteeNotwithstanding any other provision of this Agreement, subject any Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that Company or any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indentureother Wholly Owned Subsidiary.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person, or sell, transfer, or otherwise dispose of (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 assets (determined on a consolidated basis for the Company and its Restricted Subsidiaries), unless:
(1) either (A) the Company shall be the surviving or continuing entity or (B) the Person (if other than the Company) formed by such merger, consolidation or the purchaser of all or substantially all of the Company's assets is an entity organized and validly existing under the laws of the United States of America or any State thereof or the District of Columbia (the "Surviving Entity");
(2) the Surviving Entity, if any, expressly assumes by a supplemental indenture that is in form and substance satisfactory to the Trustee all rights and obligations of the Company under the Notes and this Indenture and the Security Documents;
(3) immediately after giving effect to such transaction, including the assumption of the Notes, the Company or the Surviving Entity is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12(a);
(4) immediately before and after giving effect to such transaction, including the assumption of the Notes, no Default or Event of Default occurred or exists; and
(5) the Company or the Surviving Entity shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel stating that all requirements under this Indenture for such a transaction have been satisfied.
(b) For purposes of this Section 5.01, 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 and assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties or assets of the Company, will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(c) 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 4.15) shall not, and the Company shall not cause or permit any Guarantor to, consolidate with or merge with or into any Person other Person than the Company or sell, convey, transfer or lease all or substantially all its assets to any other Person, unless Guarantor unless:
(1) the Person entity formed by or surviving any such consolidation or into which merger (if other than the Company is merged Guarantor) or to which such sale, conveyancelease, transfer conveyance or lease is other disposition shall have been made shall (A) be incorporated or otherwise organized assumes by supplemental indenture all of the obligations of such Guarantor under the laws of the United States, any state thereof or the District of Columbia, and (B) expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, Guarantee and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and applicable Security Documents;
(2) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or leasetransaction, no Default or Event of Default shall have occurred and be continuing. Clause ; and
(3) 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 Section 5.01(a)(3).
(d) Any merger or consolidation of a Guarantor with and into the Company (with the Company being the surviving entity) or another Guarantor need not comply with Section 5.01(a).
(e) The following additional conditions shall apply to each transaction described in the preceding paragraphs of this Section 5.01:
(1) the Company, such Guarantor or the relevant surviving entity, as applicable, will cause such amendments or other instruments to be filed and recorded in such jurisdictions as may be required by applicable law to preserve and continue the Lien of this Indenture and the Security Documents on the Collateral held by or transferred to such Person, together with such financing statements or other similar filings as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or other similar filing under applicable law;
(2) of the immediately preceding sentence shall not apply Collateral held by or transferred to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of such Guarantor or the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.relevant surviving entity, as applicable, shall
(bA) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company continue to any other Person, in accordance with constitute Collateral under this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the NotesSecurity Documents, and from time and
(B) not be subject to time such Person may exercise each and every right and power of any Lien other than Permitted Collateral Liens; and
(3) the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject delivered to the provisions of Sections 10.01 Trustee an Officers' Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared each stating that such transaction and, if supplemental indentures or supplemental Security Documents are required in accordance connection with Section 15.01 of the Existing Indenturesuch transaction, as conclusive evidence that any such mergersupplemental indentures and supplemental Security Documents, sale, conveyance or lease, and any such assumption, complies comply with the applicable provisions of this Indenture and the IndentureSecurity Documents, that all conditions precedent in this Indenture relating to such transaction have been satisfied and that such supplemental indentures and supplemental Security Documents are enforceable. Notwithstanding anything in this Section 5.01 to the contrary:
(1) the Company may merge with an Affiliate that has no material assets or liabilities and that is incorporated or organized solely for the purpose of reincorporating or reorganizing the Company in another state of the United States of America or the District of Columbia without complying with Section 5.01(a)(3); and
(2) any transaction characterized as a 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 an Asset Sale, if the result of such transaction is the transfer of assets by the Company or a Restricted Subsidiary, or an Investment, if the result of such transaction is the acquisition of assets by the Company or a Restricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Huntsman Polymers Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not consolidate with, merge with or merge into any other Person into, or sell, convey, transfer transfer, lease or lease otherwise dispose of all or substantially all of its property and assets (in one transaction or a series of related transactions) to, any Person (other than a consolidation with or merger with or into a Subsidiary or a sale, conveyance, transfer, lease or other disposition to a Subsidiary) or permit any other Person, unless Person to merge with or into the Company unless:
(1i) either (i) the Company shall be the continuing Person or (ii) the Person formed by such consolidation or into which the Company is merged or to which that acquired or leased such sale, conveyance, transfer or lease is made property and assets of the Company shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United StatesStates of America or any jurisdiction thereof (or, any state entity not organized under such laws which agrees (i) to subject itself to the jurisdiction of the United States district court for the Southern District of New York, and (ii) to indemnify and hold harmless the Holders of all Notes against (A) any tax, assessment or governmental charge imposed on such Holders by a jurisdiction other than the United States or any political subdivision or taxing authority thereof or therein with respect to, and withheld on the District making of, any payment of Columbiaprincipal of or interest on such Notes and which would not have been so imposed and withheld had such consolidation, merger, sale or conveyance not been made and (B) any tax, assessment or governmental charge imposed on or relating to, and any costs or expenses involved in, such consolidation, merger, sale or conveyance) and shall expressly assume, by a supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidationthe Trustee, merger, sale, conveyance, transfer or lease, the due and punctual payment all of the principal obligations of the Company under this Indenture and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and ;
(2ii) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or leasetransaction, no Event of Default under the Indenture shall have occurred and be continuing. Clause ; and
(2iii) an Officer’s Certificate and an Opinion of Counsel as to the immediately matters set forth in the preceding sentence clauses (i) and (ii) shall not apply have been delivered to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizingTrustee.
(b) Upon any The preceding paragraph (a) of this Section 5.4 shall not apply to:
(i) the merger or consolidation of the Company with an Affiliate, if the Board of Directors determines in good faith that the purpose of such transaction is principally to change the Company’s state of incorporation or to convert the Company’s form of organization to another form of organization; or
(ii) the merger or consolidation of the Company with or merger into a single direct or indirect wholly-owned Subsidiary pursuant to Section 905 (or any successor provision) of the Company into Business Corporation Law of the State of New York.
(c) Upon any other Personconsolidation or merger, or any sale, conveyance, transfer transfer, lease or lease other disposition of all or substantially all of the property and assets of the Company to any other Person, in accordance with this Section 5.045.4, the Person formed by if there is a successor, such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made successor shall succeed to, and be substituted for, for the Company and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as in place of the Company in the Indenture, and thereafter, the Company shall (except in the case of a lease, lease of all or substantially all of property and assets of the predecessor Company shall Company) be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: First Supplemental Indenture (Arrow Electronics Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not shall not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company's assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any other 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 to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Restricted Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, any state thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes, according to their tenorthis Indenture, and the due and punctual performance and observance Registration Rights Agreement on the part of all other obligations to the Holders and the Trustee under the Indenture or under the Notes Company to be performed or observed by the Companyobserved; and (2ii) immediately after giving effect to such consolidationtransaction and the assumption contemplated by clause (i)(b)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), mergerthe Company or such Surviving Entity, saleas the case may be, conveyance(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 at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12; (iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(b)(y) above (including, transfer without limitation giving effect to any Indebtedness and Acquired Indebtedness incurred or leaseanticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred and be continuing. Clause ; and (2iv) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger 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 Company into an Affiliate applicable provisions of the Company for the purpose of the Company reincorporating or reorganizingthis Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
(b) Upon any consolidation For purposes of this Section 5.01, the Company with transfer (by lease, assignment, sale or merger otherwise, in a single transaction or series of the Company into any other Person, or any sale, conveyance, transfer or lease transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation Capital Stock of which constitutes all or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from substantially all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name properties and assets of the Company, shall be deemed to be the transfer of all or in its own name; and any act or proceeding by any provision substantially all of the Indenture required or permitted to be done by the Board of Directors or any officer properties and assets of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedCompany.
(c) The Trustee, subject 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 10.01 Section 4.15) will not, and 10.02 the Company 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: (i) the entity formed by or surviving any such consolidation or merger is a corporation organized and existing under the laws of the Existing IndentureUnited States or any State thereof or the District of Columbia; (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, may receive 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 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 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 an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indentureeach stating that such consolidation, as conclusive evidence that any such merger, sale, assignment, transfer, lease, conveyance or leaseother disposition and, and any if a supplemental indenture is required in connection with such assumptiontransaction, complies such supplemental indenture comply with the applicable provisions of the Indenturethis Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
Appears in 1 contract
Samples: Indenture (Penn National Gaming Inc)
Merger, Consolidation and Sale of Assets. (a) The Company will not shall not, in a single transaction or a series of related transactions, consolidate with or merge with or into any Person (other Person than the merger of a Wholly Owned Subsidiary of the Company into the Company), or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of all or substantially all of the Company's properties and assets (determined on a consolidated basis for the Company and its assets Subsidiaries) to any other Person, unless Person whether as an entirety or substantially as an entirety 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 to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and its Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated a corporation or otherwise limited liability company organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indenturean agreement (in form and substance reasonably satisfactory to the Required Holders), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Holders, the due and punctual payment of the principal of and interest and premium, if any, and interest on all of the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under every covenant of the Notes and this Indenture on the part of the Company to be performed or observed by the Company; and observed;
(2) immediately after giving effect to such consolidationtransaction and the assumption contemplated by clause (1)(B)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), mergerthe Company or such Surviving Entity, saleas the case may be, conveyance(i) shall be able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.12 and (ii) shall have a Consolidated Net Worth at least equal to the Consolidated Net Worth of the Company immediately prior to such transaction;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(y) above (including, transfer without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or leaseanticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred and be continuing. Clause ; and
(24) the Company or the Surviving Entity, as the case may be, shall have delivered to the Holders an Officers' Certificate stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company properties and assets of one or more Subsidiaries of the Company, (Y) any merger the Capital Stock of which constitutes all or substantially all of the Company into any Subsidiary properties and assets of the Company or (Z) any merger of Company, shall be deemed to be the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the properties and assets of the Company Company.
(c) Each Guarantor (other than any Guarantor whose Guarantee is to any other Person, be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Section 5.044.16) 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 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 sale, conveyancelease, transfer conveyance or lease other disposition shall have been made is made 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 succeed to, have occurred and be substituted for, continuing; and may exercise every right (iv) 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 Indenture provisions of clause (2) of Section 5.01(a). Any merger or consolidation of a Guarantor with and into the Company (with the same effect as if such successor Person had been named as Company being the surviving entity) or another Guarantor that is a Wholly Owned Subsidiary of the Company in need only comply with clause (4) of Section 5.01(a). When a successor assumes all of the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, Notes and this Indenture in the name of the Company, or in its own name; and any act or proceeding a transaction permitted by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such leasethis Section 5.01, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall will be relieved of and discharged deemed to be released from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedthose obligations.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not may not, directly or indirectly, consolidate or merge with or merge into any other another Person (whether or not the Company is the Surviving Corporation) or sell, assign, transfer, convey, transfer lease or lease otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any other Personanother person, unless unless:
(1i) either:
(A) the Company shall be the surviving person or
(B) the Person (if other than the Company) formed by or surviving any such consolidation or into which merger (if other than the Company is merged Company) or to which such sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is other disposition has been made shall (A) be incorporated a corporation organized or otherwise organized existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia;
(C) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the person to which such sale, and (B) expressly assumeassignment, transfer, conveyance or other disposition has been made assumes, by supplemental indentureindenture in form satisfactory to the Trustee, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, all the due and punctual payment obligations of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or Company under the Notes to be performed or observed by the Company; and this Indenture;
(2ii) immediately after giving effect such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iii) and clause (iv) below, any Debt that becomes, or is anticipated to become, an obligation of the surviving person as a result of such consolidation, merger, sale, conveyance, transfer transaction or leaseseries of transactions as having been Incurred by the surviving person at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ;
(2iii) except with respect to a consolidation or merger of the immediately preceding sentence Company with or into a Restricted Subsidiary, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof; and
(iv) the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance satisfactory to the Trustee, in its reasonable judgment, an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction or series of transactions and the supplemental indenture, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied.
(b) The foregoing provisions (other than clause (v)) shall not apply to any transaction or series of transactions which constitute an Asset Sale if the Company has complied with Section 4.12.
(Xc) any The sale, conveyanceassignment, transfer transfer, lease, conveyance or lease between other disposition of all or among substantially all of the Company and properties or assets of one or more Subsidiaries of the Company, (Y) any merger which properties or assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties or assets of the Company into any Subsidiary of on a consolidated basis, shall be deemed to be the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the properties or assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (Centene Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will may not consolidate with or merge with or into (whether or not the Company is the Surviving Person) any other Person entity and the Company shall not, and shall not cause or permit any Restricted Subsidiary to, sell, convey, transfer assign, transfer, lease or lease otherwise dispose of all or substantially all its of the Company’s and the Restricted Subsidiaries’ assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) to any other PersonPerson in a single transaction or series of related transactions, unless unless:
(1) the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall either (A) the Company shall be incorporated the Surviving Person or otherwise (B) the Surviving Person (if other than the Company) shall be a Person organized and validly existing under the laws of the United States, States of America or any state State thereof or the District of Columbia, and (B) shall, in any such case, expressly assume, assume by a supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and of, premium, if any, and interest on all the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders every covenant of this Indenture and the Trustee under the Indenture or under the Notes Registration Rights Agreement to be performed or observed by on the part of the Company; and provided, that in the case where the Surviving Person is not a corporation, there is a co-obligor of the Notes that is a corporation;
(2) immediately thereafter, on a pro forma basis after giving effect to such consolidation, merger, sale, conveyance, transfer transaction (and treating any Indebtedness not previously an obligation of the Company or leaseany Restricted Subsidiary in connection with or as a result of such transaction as having been Incurred at the time of such transaction), no Default or Event of Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.and
Appears in 1 contract
Samples: Indenture (General Cable Corp /De/)
Merger, Consolidation and Sale of Assets. (a) The Company will Issuer and Holdings may not consummate a Division as a Dividing Person and may not consolidate or merge with or merge into any other Person Person, or selllease, convey, sell or transfer or lease all or substantially all of its property and assets to any other Person, unless unless: (1) the Person formed by such consolidation or into which the Company Issuer or Holdings, as the case may be, is merged or to which such salemerged, conveyance, transfer or lease is made shall (A) be incorporated or otherwise organized under the laws of the United States, any state thereof or the District of Columbia, and (B) expressly assume, Person which acquires by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture sale or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, no Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the property and assets of the Company to Issuer or Holdings or the Division Successor surviving any other PersonDivision, in accordance with this Section 5.04as the case may be, is a corporation organized and existing under the laws of Australia, Switzerland, any Member State of the European Union, the United Kingdom or, any state of the United States or the District of Columbia; (2) (x) the Person formed by such consolidation or into which the Company Issuer or Holdings, as the case may be, is merged merged, or the Person which acquires by lease, sale or transfer all or substantially all of the property and assets of the Issuer or Holdings, as the case may be, agrees (i) in the case of the Issuer, to which such sale, conveyance, transfer or lease is made shall succeed topay the principal of, and be substituted for, any premium and may exercise every right and power ofinterest on, the Company under Notes, assume, perform and observe all obligations, covenants and conditions of the Indenture with the same effect as if such successor Person had been named Issuer and Holdings, as the Company case may be, under this Indenture by executing and delivering to the Trustee a supplemental indenture and (ii) in the Indenturecase of Holdings, and thereafter, except to guarantee the Notes pursuant to the terms of this Indenture or (y) in the case of a leaseDivision, where the Issuer or Holdings is the Dividing Person, the predecessor Company Division Successor shall be relieved remain or become a co-issuer of and discharged from all obligations and covenants under the Indenture and the Notes, ; and from time (3) immediately after giving effect to time such Person may exercise each transaction and every right and power treating indebtedness for borrowed money that becomes an obligation of the Company under the IndentureIssuer, in the name Holdings or any of the Company, or in its own name; and any act or proceeding by any provision Restricted Subsidiaries as a result of the Indenture required or permitted to be done such transaction as having been incurred by the Board of Directors Issuer, Holdings or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall such Restricted Subsidiaries at the time of such transaction, no Default or Event of Default shall have occurred and be continuing.
(b) In addition, notwithstanding the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such leaseforegoing, the Company Issuer may (a) consolidate or merge with or into, or sell, lease or transfer all or substantially all of its properties or assets to, any successor entity which shall theretofore have become such of its Restricted Subsidiaries or (b) merge or consolidate with an affiliate incorporated solely for the purpose of reincorporating or reorganizing the Issuer in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedanother jurisdiction.
(c) The TrusteeNothing in the foregoing clauses shall restrict the Issuer or Holdings from consolidating with or merging with or into or winding up into an affiliate of Holdings solely for the purpose of redomiciling the Issuer or Holdings, subject to the provisions of Sections 10.01 and 10.02 as applicable, in Australia, Switzerland, any Member State of the Existing IndentureEuropean Union, may receive an Opinion of Counselthe United Kingdom or, prepared in accordance with Section 15.01 any state of the Existing IndentureUnited States or the District of Columbia, so long as conclusive evidence that the amount of indebtedness outstanding of Holdings and its Restricted Subsidiaries is not increased thereby and such action would not result in any such merger, sale, conveyance material adverse tax consequences to Holders or lease, and otherwise adversely affect in any such assumption, complies with material respect the applicable provisions legal rights under this Indenture of the Indentureany Holder.
Appears in 1 contract
Samples: Indenture (Tronox Holdings PLC)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of all or substantially all its of the Company’s properties and assets determined on a consolidated basis (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) to any other Person, unless unless:
(1) either
(A) the Company shall be the surviving or continuing Person; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition all or substantially all of the Company’s properties and assets (the “Surviving Entity”):
(i) shall (A) be incorporated or otherwise an entity organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, and ; and
(Bii) shall expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under every covenant in the Notes and this Indenture on the part of the Company to be performed or observed by the Company; and observed;
(2) immediately after giving effect to such consolidationtransaction and, mergerif applicable, salethe assumption contemplated by Section 5.01(a)(1)(B)(ii) above (including giving pro forma effect to any Indebtedness and Acquired Indebtedness incurred and any repayment, conveyancerepurchase, transfer defeasance, redemption or leaseother discharge of Indebtedness by the Company or the Surviving Entity, as the case may be, 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 at least $1.00 of additional Indebtedness pursuant to Section 4.07(b); or (c) shall have a Consolidated Fixed Charge Coverage Ratio that is equal to or greater than the Consolidated Fixed Charge Coverage Ratio of the Company immediately prior to such transaction (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 after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation of the 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 the Company or the Surviving Entity, 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 Company or the Surviving Entity 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. Clause ;
(24) of if the immediately preceding sentence shall Surviving Entity is not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, each Guarantor (Yunless it is the Surviving Entity, in which case Section 5.01(a)(1)(B) any merger above shall apply) shall have by supplemental indenture confirmed that its Guarantee of the Notes shall apply to such Surviving Entity’s obligations under this Indenture and the Notes; and
(5) the Company into or the Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel (which Opinion of Counsel 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.
(b) Notwithstanding the provisions of Section 5.01(a), any Subsidiary of the Company may merge or (Z) consolidate with or into or transfer all or any merger part of its properties and assets to the Company or any other Subsidiary of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizingand Sections 5.01(a) and (f) shall not apply to any such transaction.
(bc) Upon any consolidation For purposes of the Company with or merger of foregoing, the Company into any other Person, or any sale, conveyanceassignment, transfer transfer, lease, conveyance or lease other disposition, in a single transaction or series of related transactions, of all or substantially all of the properties and assets of one or more Subsidiaries of the Company (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 on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(d) For purposes of clarity, it is understood and 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 Securitization Entity for the purpose of enabling such Securitization Entity to securitize the 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 Persondisposition of all or substantially all of the Company’s properties and assets, on a consolidated basis or otherwise, for purposes of the other paragraphs of this Section 5.01.
(e) Upon any consolidation or merger or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in accordance with this Section 5.04, the Person formed by such consolidation or into foregoing in which the Company is merged not the surviving or to which such salecontinuing entity, conveyanceas the case may be, transfer or lease is made the Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Indenture Notes with the same effect as if such successor Person Surviving Entity had been named as the “Company” herein and therein, and the Company in the shall be released from all of its obligations under this Indenture, the Notes and thereafterall Registration Rights Agreements; provided that, except in the case of a lease, the predecessor Company shall be relieved lease of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power or substantially all of the Company under the Indenture, in the name properties and assets of the Company, or 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 its own name; any transaction described in, and any act or proceeding by any provision made in compliance with, this Section 5.01 shall be a Guarantor of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any Notes, such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) Guarantor shall be relieved released from its Guarantee of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions all of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, its other obligations as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the a Guarantor under this Indenture.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company’s assets (determined on a consolidated basis for the Company and the Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless 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 to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the assets of the Company and the Subsidiaries substantially as an entirety (the “Surviving Entity”) (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest and premium, if any, and interest on all of the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to every covenant of the Holders Notes and the Trustee under Indenture on the Indenture or under part of the Notes Company to be performed or observed by the Company; and observed;
(2) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(y) above (including, without limitation, giving effect to 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 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, conveyanceassignment, transfer or transfer, lease, no Default shall have occurred and be continuing. Clause (2) 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 immediately preceding sentence shall not apply Indenture and that all conditions precedent in the Indenture relating to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizingsuch transaction have been satisfied.
(b) Upon any consolidation For purposes of the Company with foregoing, the transfer (by lease, assignment, sale or merger otherwise, in a single transaction or series of transactions) of all or substantially all of the Company into any other Personassets of one or more Subsidiaries, the Capital Stock of which constitutes all or any salesubstantially all of the assets of the Company, conveyance, shall be deemed to be the transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) 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 Second 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 Trustee), executed and delivered to the Trustee, subject 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 shall have delivered to the provisions of Sections 10.01 Trustee an Officers’ Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared each stating that such consolidation or merger and, if a supplemental indenture is required in accordance connection with Section 15.01 of the Existing Indenturesuch transaction, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, supplemental indenture complies with the applicable provisions of the IndentureIndenture and that all conditions precedent in the Indenture relating to such transaction have been satisfied.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not Each Issuer shall not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease 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 its of such Issuer's assets (determined, in the case of the Company, on a consolidated basis for the Company and the Company's Restricted Subsidiaries) whether as an entirely or substantially as an entirety to any other Person, unless Person unless:
(1i) either (A) such Issuer shall be the surviving or continuing corporation or (B) the Person (if other than such Issuer) formed by such consolidation or into which the Company such Issuer is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of such Issuer and of its Restricted Subsidiaries substantially as an entirety (the "SURVIVING ENTITY"): (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state State thereof or the District of ColumbiaColumbia (or, in the case of a merger, amalgamation, continuation, consolidation or sale involving Sport Maska Inc., Canada or any Political subdivision thereof); and (By) shall expressly assume, by supplemental indentureindenture (in form 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, if any, and interest on all of the Notes and the performance of every covenant of the Notes, this Indenture and the Registration Rights Agreement on the part of such Issuer or the Subsidiary Issuer, as the case may be, to be performed or observed;
(ii) immediately after giving effect to such transaction and the assumption contemplated by CLAUSE (a)(i)(b)(y) of this SECTION 5.01 (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such Person transaction), (a) such Issuer or such Surviving Entity, as the case may be, 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 at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with SECTION 4.12;
(iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by CLAUSE (a)(i)(b)(y) of this SECTION 5.01 (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or simultaneously 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; and
(iv) such Issuer 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, conveyanceassignment, transfer or transfer, lease, conveyance or other disposition complies with the due applicable provisions of this Indenture and punctual payment of the principal of and interest and premium, if any, on that all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the conditions precedent in this Indenture or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect relating to such consolidation, merger, sale, conveyance, transfer or lease, no Default shall transaction have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizingbeen satisfied.
(b) Upon any consolidation For purposes of the Company with foregoing, the transfer (by lease, assignment, sale or merger otherwise, in a single transaction or series of the Company into any other Person, or any sale, conveyance, transfer or lease transactions) of all or substantially all of the properties or assets of the Company to any other Person, in accordance with this Section 5.04one or more Restricted Subsidiaries of an Issuer, the Person formed by Capital Stock of which constitutes all or substantially all of the properties and assets of that Issuer, shall be deemed to be the transfer of all or substantially all of the properties and assets of that Issuer. Notwithstanding anything in this SECTION 5.01 to the contrary, such consolidation Issuer may merge with an Affiliate that has no material assets or into which liabilities and that is incorporated or organized solely for the Company is merged purpose of reincorporating or to which reorganizing such saleIssuer in another state of the United States or the District of Columbia, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and Canada, or any act or proceeding by any provision political subdivision thereof, in the case of the Indenture required or permitted to be done by the Board Subsidiary Issuer, without complying with CLAUSE (a)(ii) of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedSECTION 5.01.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (Hockey Co)
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company's assets (determined on a consolidated basis for the Company and its assets Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, unless Person unless:
(1) either (A) the Company or a Restricted Subsidiary of the Company shall be the surviving or continuing corporation or (B) 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 Company's assets determined on a consolidated basis for the Company and its Restricted Subsidiaries (the "Surviving Entity") (x) shall be a corporation or limited liability company organized and validly existing under the laws of the United States or any State thereof or the District of Columbia and (y) shall expressly assume the due and punctual payment of the principal of and premium, if any, and interest on all of the Securities and the performance of every covenant of the Securities or this Note Agreement on the part of the Company to be performed or observed;
(2) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(y) above, including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction, no Default or Event of Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction the Consolidated Total Debt Ratio would not be greater than 3 to 1; and
(4) the Company or the Surviving Entity shall have delivered to the Holders an Officers' Certificate and an Opinion of Counsel stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition shall comply with the applicable provisions of this Note Agreement and that all conditions precedent in this Note Agreement relating to the execution of such transaction have been satisfied. For purposes of the 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, 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, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. Upon any consolidation, combination or merger or any transfer of all or substantially all of the assets of the Company in accordance with the foregoing, in which the Company is not the continuing corporation, the successor Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, lease or transfer or lease is made shall (A) be incorporated or otherwise organized under the laws of the United States, any state thereof or the District of Columbia, and (B) expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, no Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Note Agreement and the Indenture Securities with the same effect as if such successor Person surviving entity had been named as such and the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all of its obligations and covenants duties under this Note Agreement and the Securities. Each Guarantor, other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Note Agreement, 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 Indenture laws of the United States or any State thereof or the District of Columbia;
(2) such entity assumes all of the obligations of the Guarantor on the Guarantee; and
(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 the NotesConsolidated Total Debt Ratio would not be greater than 3 to 1. Any merger or consolidation of a Guarantor with and into the Company, and from time to time such Person may exercise each and every right and power with the Company being the surviving entity, or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done need not comply with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated5.01.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Note Agreement (Designs Inc)
Merger, Consolidation and Sale of Assets. (a1) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company’s assets (determined on a consolidated basis for the Company and the Company’s Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any Person (other Personthan the Company or any Wholly Owned Restricted Subsidiary that is a Guarantor) unless: (A) either (i) with respect to such a consolidation or merger, unless the Company shall be the surviving or continuing corporation or (1ii) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Surviving Entity”) (a) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (Bb) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes, according to their tenor, this Indenture and the due and punctual performance and observance Registration Rights Agreement on the part of all other obligations to the Holders and the Trustee under the Indenture or under the Notes Company to be performed or observed by the Companyobserved; and (2B) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(A)(ii)(b) of this Section 5.01 (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Company or such Surviving Entity, as the case may be, shall be able to incur at least $1.00 of additional Indebtedness pursuant to the first paragraph of clause (1) Section 4.12; (C) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(A)(ii)(b) of this Section 5.01 (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and (D) 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, conveyanceassignment, transfer or 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.
(2) For purposes of the 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, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(3) 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 4.16) 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 Person organized and existing under the laws of the United States or any State thereof or the District of Columbia; (B) such entity assumes by supplemental indenture all of the obligations of the Guarantor on the Guarantee; and (C) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. Clause Any merger or consolidation of a Guarantor with and into the Company (2with the Company being the surviving entity) or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company need only comply with clause (D) of the immediately preceding sentence first paragraph of this Section 5.01. The foregoing restrictions shall not apply to any transaction involving (XA) any sale, conveyance, transfer or lease between or among a merger of the Company and one of its Subsidiaries for the purposes of establishing a holding company structure (the “Holding Company Merger”) or more Subsidiaries of (B) the Company, (Y) any merger of the Company into any Subsidiary and one of the Company or (Z) any merger of the Company into an Affiliate of the Company its Subsidiaries for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation into another jurisdiction. Either of the Company with transactions described in clause (A) or merger clause (B) of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and paragraph may be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, effected individually or in its own nameconnection with one or more related transactions; and any act provided that (i) such transaction or proceeding by any provision transactions (individually or taken as a whole) is not for the purposes of evading the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described provisions set forth in this Section 5.045.01 and (ii) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
clause (c1) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion first paragraph of Counsel, prepared in accordance with this Section 15.01 of the Existing Indenture, as conclusive evidence that any 5.01 applies to such merger, sale, conveyance transaction or lease, and any such assumption, complies with the applicable provisions of the Indenturetransactions.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not shall not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all its of the Company's assets (determined on a consolidated basis for the Company and the Company's Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any other Person, Person unless at the time of and after giving effect thereto; (1i) either (a) the Company or the Issuer shall be the surviving or continuing corporation or (b) the Person (if other than the Company or the Issuer) formed by such consolidation or into which the Company or the Issuer is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and of the Company's Restricted Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated or otherwise a corporation organized and validly existing under the laws of the United States, any state thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes, according to their tenorthis Indenture, and the due and punctual performance and observance Registration Rights Agreement on the part of all other obligations to the Holders and the Trustee under the Indenture Company or under the Notes such Restricted Subsidiary to be performed or observed by the Companyobserved; and (2ii) immediately after giving effect to such consolidationtransaction and the assumption contemplated by clause (i)(b)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), mergerthe Company or such Surviving Entity, saleas the case may be, conveyance(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 at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12; (iii) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(b)(y) above (including, transfer without limitation giving effect to any Indebtedness and Acquired Indebtedness incurred or leaseanticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred and be continuing. Clause ; and (2iv) the Company 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 immediately preceding sentence applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied; provided, however, that the foregoing restrictions shall not apply to (Xi) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company a Restricted Subsidiary with or into any other Person, (or any sale, conveyanceassignment, transfer transfer, lease, conveyance or lease other disposition of all or substantially all of the properties, assets or Capital Stock of a Restricted Subsidiary to) the Company, the Issuer or another Re- stricted Subsidiary which is a Guarantor, or (ii) a consolidation or merger of Standard Wool with or into, or sale, assignment, transfer, lease, conveyance or other disposition of the properties, assets or Capital Stock of Standard Wool to any Person, provided that the Company shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions to Standard Wool or the Company, as the case may be, from a financial point of view, from an Independent Financial Advisor and shall provide such opinion to the Trustee together with an Officer's Certificate setting forth in reasonable detail the facts and circumstances of such transaction. For purposes of the 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 to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation Capital Stock of which constitutes all or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from substantially all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name properties and assets of the Company, shall be deemed to be the transfer of all or in its own name; and any act or proceeding by any provision substantially all of the Indenture required or permitted to be done by the Board of Directors or any officer properties and assets of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedCompany.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Indenture (Standard Commercial Corp)
Merger, Consolidation and Sale of Assets. (a) The Company will shall not merge, consolidate or amalgamate with or merge into any other Person (other than a merger of a Wholly Owned Restricted Subsidiary into the Company) or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all of its assets to Property in any other Person, unless one transaction or series of transactions unless:
(1i) the Company shall be the Surviving Person in such merger, consolidation or amalgamation, or the Surviving Person (if other than the Company) formed by such merger, consolidation or into which the Company is merged amalgamation or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall (A) be incorporated a corporation, partnership or otherwise limited liability company organized and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia; provided, and however, that if such Person is a limited liability company or partnership, a corporate Wholly Owned Restricted Subsidiary of such Person becomes a co-issuer of the Notes in connection therewith;
(Bii) the Surviving Person (if other than the Company) expressly assumeassumes, by supplemental indentureindenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leaseSurviving Person, the due and punctual payment of the principal of and interest of, and premium, if any, on and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under the conditions of this Indenture or under the Notes to be performed or observed by the Company; ;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of the Company, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (2and treating, for purposes of this clause (iv) and clause (v) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person or any Restricted Subsidiary as a result of such transaction or series of transactions as having been Incurred by the Surviving Person or such Restricted Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing;
(v) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis, either (a) the Company or the Surviving Person, as the case may be, would be able to Incur at least $1.00 of additional Debt under Section 4.09(a) or (b) the Consolidated Interest Coverage Ratio would not be lower than the Consolidated Interest Coverage Ratio immediately prior to giving effect to such transaction or series of transactions; and
(vi) the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction or series of transactions and the supplemental indenture, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied.
(b) The Parent shall not, and the Parent and the Company shall not permit any Guarantor to merge, consolidate or amalgamate with or into any other Person (other than a merger of a Wholly Owned Restricted Subsidiary into the Parent, the Company or such Guarantor) or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all its Property in any one transaction or series of transactions (other than a sale, transfer, assignment, lease, conveyance or other disposition between or among the Company and any Guarantor) unless:
(i) the Surviving Person (if not such Guarantor) formed by such merger, consolidation or amalgamation or to which such sale, conveyancetransfer, transfer or assignment, lease, conveyance or disposition is made shall be a corporation, company (including a limited liability company) or partnership organized and existing under the laws of the United States of America, any State thereof or the District of Columbia;
(ii) the Surviving Person (if other than such Guarantor) expressly assumes, by supplemental indenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Person, the due and punctual performance and observance of all the obligations of such Guarantor under its Guarantee;
(iii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of such Guarantor, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (iv) and clause (v) below, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person, the Parent or any Restricted Subsidiary as a result of such transaction or series of transactions as having been Incurred by the Surviving Person, the Parent or such Restricted Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ;
(2v) immediately after giving effect to such transaction or series of the immediately preceding sentence shall not apply to transactions on a pro forma basis, either (Xa) any sale, conveyance, transfer or lease between or among the Company and one would be able to Incur at least $1.00 of additional Debt under Section 4.09(a) or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation the Consolidated Interest Coverage Ratio would not be lower than the Consolidated Interest Coverage Ratio immediately prior to giving effect to such transaction or series of transactions; and
(vi) the Company with or merger of the Company into any other Personshall deliver, or any salecause to be delivered, conveyance, transfer or lease of all or substantially all of to the assets of the Company to any other PersonTrustee, in accordance with this Section 5.04, form and substance reasonably satisfactory to the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 an Officers’ Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared each stating that such transaction or series of transactions and such Guarantee, if any, in accordance re- spect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction or series of transactions have been satisfied. The foregoing provisions (other than clause (iv) in each of paragraphs (a) and (b) hereof) shall not apply to any transaction or series of transactions which constitute an Asset Sale if the Parent and the Company have complied with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture4.12.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will shall not merge, consolidate or amalgamate with or merge into any other Person (other than a merger of a Restricted Subsidiary into the Company) or sell, conveytransfer, transfer assign, lease, convey or lease otherwise dispose of all or substantially all its assets to Property in any other Person, unless one transaction or series of transactions unless:
(1a) the Company shall be the surviving Person (the "SURVIVING PERSON") or the Surviving Person (if other than the Company) formed by such merger, consolidation or into which the Company is merged amalgamation or to which such sale, conveyancetransfer, transfer assignment, lease, conveyance or lease disposition is made shall (A) be incorporated or otherwise a corporation organized and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia, and ;
(Bb) the Surviving Person (if other than the Company) expressly assumeassumes, by supplemental indentureindenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leaseSurviving Person, the due and punctual payment of the principal of and interest of, and premium, if any, on and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders covenants and the Trustee under conditions of the Indenture or under the Notes to be performed or observed by the Company; ;
(c) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of the Company, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(d) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis no Default or Event of Default shall have occurred and be continuing;
(2e) immediately after giving effect to such consolidationtransaction or series of transactions on a pro forma basis, the Company or the Surviving Person, as the case may be, would be able to Incur at least $1.00 of additional Debt under clause (a) of Section 4.09 hereof or, after giving effect to such incurrence, the Consolidated Interest Coverage Ratio of the Company or the Surviving Person, as the case may be, would be the same or better than such ratio immediately prior to giving effect to transaction or series of transactions; and
(f) the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such transaction and the supplemental indenture, if any, in respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction have been satisfied. The Company shall not permit any Subsidiary Guarantor to merge, consolidate or amalgamate with or into any other Person (other than a merger of a Restricted Subsidiary into the Subsidiary Guarantor) or sell, transfer, assign, lease, convey or otherwise dispose of all or substantially all its Property in any one transaction or series of transactions unless:
(a) the surviving Person (if other than the Subsidiary Guarantor) formed by such merger, consolidation or amalgamation or to which such sale, conveyancetransfer, transfer or assignment, lease, conveyance or disposition is made shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia;
(b) the Surviving Person (if other than the Subsidiary Guarantor) expressly assumes, by supplemental indenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Person, the due and punctual payment of the principal of, and premium, if any, and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee;
(c) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of such Subsidiary Guarantor, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(d) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis (and treating, for purposes of this clause (d), any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person, the Company or any Restricted Subsidiary as a result of such transaction or series of transactions as having been Incurred by the Surviving Person, the Company or such Restricted Subsidiary at the time of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing. Clause ;
(2e) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other Personshall deliver, or any salecause to be delivered, conveyance, transfer or lease of all or substantially all of to the assets of the Company to any other PersonTrustee, in accordance with this Section 5.04, form and substance reasonably satisfactory to the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trustee, subject to the provisions of Sections 10.01 an Officers' Certificate and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared each stating that such transaction and such Subsidiary Guarantee, if any, in accordance respect thereto comply with this covenant and that all conditions precedent herein provided for relating to such transaction have been satisfied.
Section 5.01 shall not prohibit any Subsidiary Guarantor from consolidating with, merging into or transferring all or part of its assets to the Company or any other Subsidiary Guarantor. In addition, the foregoing provisions (other than clause (d) in the first paragraph of this Section 5.01) shall not apply to any transactions which constitute an Asset Sale if the Company has complied with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture4.12 hereof.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person Person, or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of all or substantially all its of the Company’s properties and assets determined on a consolidated basis (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 ordinary course of business) to any other Person, unless unless:
(1) either
(A) the Company shall be the surviving or continuing Person; or
(B) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition all or substantially all of the Company’s properties and assets (the “Surviving Entity”):
(i) shall (A) be incorporated or otherwise an entity organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, and ; and
(Bii) shall expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest of, and premium, if any, and interest on all of the Notes, according to their tenor, Notes and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under every covenant in the Notes and this Indenture on the part of the Company to be performed or observed by the Company; and observed;
(2) immediately after giving effect to such consolidationtransaction and, mergerif applicable, salethe assumption contemplated by Section 5.01(a)(1)(B)(ii) above (including giving pro forma effect to any Indebtedness and Acquired Indebtedness incurred and any repayment, conveyancerepurchase, transfer defeasance, redemption or leaseother discharge of Indebtedness by the Company or the Surviving Entity, as the case may be, 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 at least $1.00 of additional Indebtedness pursuant to Section 4.07(b); or (c) shall have a Consolidated Fixed Charge Coverage Ratio that is equal to or greater than the Consolidated Fixed Charge Coverage Ratio of the Company immediately prior to such transaction (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 after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation of the 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 the Company or the Surviving Entity, 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 Company or the Surviving Entity 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. Clause ;
(24) of if the immediately preceding sentence shall Surviving Entity is not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, each Guarantor (Yunless it is the Surviving Entity, in which case Section 5.01(a)(1)(B) any merger above shall apply) shall have by supplemental indenture confirmed that its Guarantee of the Notes shall apply to such Surviving Entity’s obligations under this Indenture and the Notes; and
(5) the Company into or the Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel (which Opinion of Counsel 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.
(b) Notwithstanding the provisions of Section 5.01(a), any Subsidiary of the Company may merge or (Z) consolidate with or into or transfer all or any merger part of its properties and assets to the 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 an Affiliate of the Company for or the purpose of the Company reincorporating or reorganizingSurviving Entity, Section 5.01(f), shall not apply to any such transaction.
(bc) Upon any consolidation For purposes of the Company with or merger of foregoing, the Company into any other Person, or any sale, conveyanceassignment, transfer transfer, lease, conveyance or lease other disposition, in a single transaction or series of related transactions, of all or substantially all of the properties and assets of one or more Subsidiaries of the Company (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 ordinary course of business), the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(d) For purposes of clarity, it is understood and 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 Securitization Entity for the purpose of enabling such Securitization Entity to securitize the 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 Persondisposition of all or substantially all of the Company’s properties and assets, on a consolidated basis or otherwise, for purposes of the other paragraphs of this Section 5.01.
(e) Upon any consolidation or merger or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in accordance with this Section 5.04, the Person formed by such consolidation or into foregoing in which the Company is merged not the surviving or to which such salecontinuing entity, conveyanceas the case may be, transfer or lease is made the Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Indenture Notes with the same effect as if such successor Person Surviving Entity had been named as the “Company” herein and therein, and the Company in the shall be released from all of its obligations under this Indenture, the Notes and thereafterall Registration Rights Agreements; provided that, except in the case of a lease, the predecessor Company shall be relieved lease of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power or substantially all of the Company under the Indenture, in the name properties and assets of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may will not be done with like force and effect by released from its obligation to pay the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved principal of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.
(c) The Trusteepremium, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or leaseif any, and any such assumption, complies with interest on the applicable provisions of the IndentureNotes.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. (a) The Company will not shall not, in a single transaction or a series of related transactions, consolidate with or merge with or into any Person (other Person than the merger of a Wholly Owned Restricted Subsidiary of the Company into the Company), or sell, conveyassign, transfer transfer, lease, convey or lease otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company's properties and assets (determined on a consolidated basis for the Company and its assets Restricted Subsidiaries) to any other Person, unless Person whether as an entirety or substantially as an entirety 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 to the Person which such acquires by sale, conveyanceassignment, transfer transfer, lease, conveyance or lease is made other disposition the properties and assets of the Company and its Restricted Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall (A) be incorporated a corporation, partnership, limited liability company or otherwise business trust organized and validly existing under the laws of the United States, States or any state State thereof or the District of Columbia, Columbia and (By) shall expressly assume, by supplemental indentureindenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or leasethe Trustee, the due and punctual payment of the principal of and interest and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes, according to their tenorthis Indenture and, and if applicable, the due and punctual performance and observance Registration Rights Agreement on the part of all other obligations to the Holders and the Trustee under the Indenture or under the Notes Company to be performed or observed by the Company; and observed;
(2) immediately after giving effect to such consolidationtransaction and the assumption contemplated by clause (1) (B) (y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), mergerthe Company or such Surviving Entity, saleas the case may be, conveyanceshall be able to incur at least $1.00 of additional In- debtedness (other than Permitted Indebtedness) in compliance with Section 4.12;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1) (B) (y) above (including, transfer without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or leaseanticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred and be continuing. Clause ; and
(24) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger 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 Company into an Affiliate applicable provisions of the Company for the purpose of the Company reincorporating or reorganizingthis Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
(b) Upon any consolidation For purposes of the Company with foregoing, the transfer (by lease, assignment, sale or merger otherwise, in a single transaction or series of the Company into any other Person, or any sale, conveyance, transfer or lease transactions) of all or substantially all of the properties 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 Company, shall be deemed to any other Personbe the transfer of all or substantially all of the properties and assets of the Company. Notwithstanding the foregoing, in accordance with this Section 5.04shall not prohibit a transaction, the Person formed principal purpose of which is (as determined in good faith by such consolidation or into which the Board of Directors of the Company) to change the state of incorporation of the Company is merged or to which and such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, transaction does not have as one of its purposes the Company under evasion of the Indenture with limitations imposed by this Section. When a successor assumes all of the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, Notes and this Indenture in the name of the Company, or in its own name; and any act or proceeding a transaction permitted by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such leasethis Section 5.01, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall will be relieved of and discharged deemed to be released from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidatedthose obligations.
(c) The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.
Appears in 1 contract
Samples: Securities Purchase Agreement (Wilson Greatbatch Technologies Inc)
