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 shall not consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to, any Person, unless (i) any Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermuda, the British Virgin Islands, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes; (ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and (iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with. (b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 5 contracts
Samples: Indenture (MicroAlgo Inc.), Indenture (WiMi Hologram Cloud Inc.), Indenture (MicroCloud Hologram 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 shall will not consolidate with any other entity or merge accept a merger of any other entity into the Company or permit the Company to be merged into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer sell other than for cash or lease all or substantially all its properties and assets to another entity, or purchase all or substantially as an entirety toall the assets of another entity, any Person, unless
unless (i) any Person formed either the Company shall be the continuing entity, or the successor, transferee or lessee entity (if other than the Company) shall expressly assume, by indenture supplemental hereto satisfactory to the Trustee, executed and delivered by such consolidation entity prior to or into simultaneously with such consolidation, merger, sale or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudalease, the British Virgin Islandsdue and punctual payment of the principal of and interest and premium, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture if any, on all the Securities (and Coupons, if any), according to their tenor, and the due and punctual performance and observance of all other obligations of to the Company holders and the Trustee under this Indenture or under the Securities (and Coupons, if any) to be performed or observed by the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
Company; and (ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyancesale, transfer lease or lease and purchase the Company or the successor, transferee or lessee entity (if other than the Company) would not be in Default in the performance of any covenant or condition of this Indenture. A purchase by a Subsidiary of all or substantially all of the assets of another entity shall not be deemed to be a purchase of such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied withassets by the Company.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, lease of all or substantially all of the assets of the Company in accordance with this Section 6.046.05, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidatedCoupons.
Appears in 4 contracts
Samples: Indenture (Citigroup Inc), Indenture (Citigroup Funding Inc.), Indenture (Citigroup 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 shall will not consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entityor sell, or convey, transfer or lease all or substantially all its properties and assets substantially as an entirety to, to any other Person, unless
unless (i) any the Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyedwhich such sale, transferred conveyance, transfer or leased its properties lease is made shall be a Person organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudathe United States of America, any state thereof or the British Virgin Islands, Cayman Islands or Hong Kong District of Columbia and such Person expressly assumes assumes, by an indenture supplemental hereto, executed and delivered by such Person prior to this Indenture 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 Securities, according to their tenor, and the due and punctual performance and observance of all other obligations of to the Company Holders and the Trustee under this Indenture or under the Securities to be performed or observed by the Company; and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transactionsuch consolidation, merger, sale, conveyance, transfer or lease, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing; and
. Clause (iiiii) of the Company has delivered immediately preceding sentence shall not apply to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger(A) any sale, conveyance, transfer or lease between or among the Company and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided one or more Subsidiaries of the Company, (B) any merger of the Company into any Subsidiary of the Company or (C) any merger of the Company into an Affiliate of the Company for relating to such transaction have been complied withthe purpose of the Company reincorporating or reorganizing.
(b) Upon any consolidation of the Company with or merger of the Company into any other entityPerson, or any sale other than for cashsale, conveyance, transfer or any conveyance or lease, lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 6.04, the successor entity Person 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 this Indenture with the same effect as if such successor entity Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under this Indenture and the Securities, and from time to time such entity Person may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity Person that shall at the time be the successor of the Company hereunder. In the event of any such sale sale, conveyance or conveyancetransfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be relieved of and discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 4 contracts
Samples: Indenture (Shake Shack Inc.), Indenture (Shake Shack Inc.), Indenture (Shake Shack 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 shall not Neither Issuer will, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person in a transaction in which the Company is not the surviving entityPerson, or conveysell, transfer assign, transfer, lease, convey or lease its otherwise dispose of all or substantially all of the Parent Guarantor’s properties and assets substantially as an entirety todetermined 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 Person, unless:
(i1) any either
(A) an Issuer shall be the surviving or continuing Person; or
(B) the Person (if other than an Issuer) formed by such consolidation or into or with which the Company applicable Issuer is merged or to whom the Company has conveyedPerson which acquires by sale, transferred assignment, transfer, lease, conveyance or leased its other disposition all or substantially all of the applicable Issuer’s properties and assets substantially as (the “Surviving Entity”):
(i) shall be an entirety is a corporation, partnership, trust or other entity organized and validly existing under the laws of Bermudathe United States or any State thereof or the District of Columbia; and
(ii) shall expressly assume, by supplemental indenture, executed and delivered to the Trustee, the British Virgin Islandsdue and punctual payment of the principal of, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to premium, if any, and interest on all of the Notes and the performance of every covenant in the Notes and this Indenture all on the obligations part of the Company applicable Issuer to be performed or observed;
(2) if the Surviving Entity is not an Issuer, each Guarantor (unless it is the Surviving Entity, in which case clause Section 5.01(a)(1)(B) 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 Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuingNotes; and
(iii3) the Company has applicable Issuer or the Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of CounselCounsel (which opinion may be subject to customary assumptions, limitations and exceptions), each stating that such consolidation, merger, conveyancesale, transfer assignment, transfer, lease, conveyance or lease and 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 therein provided for relating to such transaction have been complied withIndenture.
(b) Upon The Parent Guarantor will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Parent Guarantor’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 Person, unless:
(1) either
(A) the Parent Guarantor shall be the surviving or continuing Person; or
(B) the Person (if other than the Parent Guarantor or an Issuer) formed by such consolidation or into which the Parent Guarantor is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition all or substantially all of the Parent Guarantor’s properties and assets (the “Surviving Guarantor”):
(i) shall be an entity organized and validly existing under the laws of the United States or any State thereof or the District of Columbia; and
(ii) shall expressly assume, by supplemental indenture, executed and delivered to the Trustee, all of the obligations of the Parent Guarantor’s Guarantee and the performance of every covenant in the Notes and this Indenture on the part of the Parent Guarantor to be performed or observed;
(2) immediately after giving effect to such transaction and, if applicable, the assumption contemplated by Section 5.01(b)(1)(B)(ii) above (including giving pro forma effect to any Indebtedness and Acquired Indebtedness incurred and any repayment, repurchase, defeasance, redemption or other discharge of Indebtedness by the Parent Guarantor or the Surviving Guarantor, as the case may be, or any of their respective Subsidiaries in connection with such transaction), the Parent Guarantor or such Surviving Guarantor, as the case may be: (a) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Parent Guarantor 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 Parent Guarantor or the Surviving Guarantor, 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 Parent Guarantor 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 Parent Guarantor or the Surviving Guarantor, 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 Guarantor and the Parent Guarantor and the Surviving Guarantor 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 Parent Guarantor, be based on either the Parent Guarantor’s or the Surviving Guarantor’s fiscal quarters;
(3) immediately after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation of the Parent Guarantor or the Surviving Guarantor, as the case may be, or any of its Subsidiaries as a result of such transaction as having been incurred by the Parent Guarantor or the Surviving Guarantor, as the case may be, or such Subsidiary at the time of such transaction, and any Indebtedness to be repaid, repurchased, defeased, redeemed or otherwise discharged by the Parent Guarantor or the Surviving Guarantor or any of their respective Subsidiaries in connection with such transaction as having been repaid, repurchased, defeased, redeemed or otherwise discharged at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(4) the Issuers shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel (which opinion may be subject to customary assumptions, limitations and exceptions), each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of this Indenture.
(c) Notwithstanding the provisions of Sections 5.01(a) or (b), any Subsidiary of the Parent Guarantor may merge or consolidate with or into or transfer all or any part of its properties and assets to the Parent Guarantor or the Surviving Guarantor or any other Subsidiary of the Parent Guarantor or the Surviving Guarantor and Section 5.01(b) and, except in the case of (i) a merger or consolidation with or merger into any other entity, the Parent Guarantor or any sale the Surviving Guarantor (which shall comply with the provisions set forth in Section 5.01(b) other than for cashclauses (2), (3) and (4) thereof) and (ii) a merger or consolidation with or into an Issuer or the Surviving Entity (which shall comply with the provisions set forth under Section 5.01(a) (to the extent not involving a merger or consolidation of the Parent Guarantor or the Surviving Guarantor with or into an Issuer or the Surviving Entity, other than clauses (2) and (3)), Section 5.01, shall not apply to any such transaction.
(d) For purposes of the foregoing, the sale, assignment, transfer, lease, conveyance or leaseother 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 Parent Guarantor (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 Parent Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Parent Guarantor.
(e) 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 Parent Guarantor in good faith determines to be consistent with past practice of the Parent Guarantor or any of its Subsidiaries or to reflect customary or accepted practice in the businesses, industries or markets in which the Parent Guarantor or any of its Subsidiaries operates or reasonably expects to operate or that reflect reasonable extensions, evolutions or developments of any of the foregoing (including, without limitation, by way of new transactions or structures), and as a result, none of the foregoing shall constitute a sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the Parent Guarantor’s properties and assets, on a consolidated basis or otherwise, for purposes of the other paragraphs of this Section 5.01.
(f) 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 Parent Guarantor in accordance with this Section 6.04the foregoing in which the applicable Issuer is not the surviving or continuing entity, as the case may be, the 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 conveyance, transfer or lease is made Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company such Issuer under this Indenture and the Notes with the same effect as if such successor entity Surviving Entity had been named as the Company hereinan “Issuer” herein and therein, and thereafterthe applicable Issuer shall be released from all of its obligations under this Indenture and the Notes; provided that, except in the case of a leaselease of all or substantially all of the properties and assets of the Parent Guarantor, the predecessor Company applicable Issuer will not be released from its obligation to pay the principal of and premium, if any, and interest on the Notes.
(g) If the Surviving Entity or the Surviving Guarantor in any transaction described in, and made in compliance with, this Section 5.01 shall be relieved a Guarantor of the Notes, or if a Guarantor shall merge or consolidate with or into the Parent Guarantor, any Issuer, the Surviving Entity, or the Surviving Guarantor, as the case may be, in any transaction described in, and made in compliance with this Section 5.01, such Guarantor’s Guarantee of the Notes will automatically terminate and be released and such Guarantor will automatically be released from all of its obligations under its Guarantee of the Notes and covenants all of its other obligations as a Guarantor under this Indenture and the Securitiescontemporaneously with such transaction.
(h) Any reference in this Indenture to a consolidation, and from time merger, sale, assignment, transfer, lease, conveyance or other disposition shall be deemed to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Companyapply to a division of, or in its own name; and any act by, a limited liability company, limited partnership or proceeding by any provision trust, or an allocation of this Indenture required assets to a series of a limited liability company, limited partnership or permitted to be done by trust (or the Board unwinding of Directors such a division or any officer of the Company may be done with like force and effect by the like board of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyanceallocation), but not any such as if it were a consolidation, merger, sale, assignment, transfer, lease, the Company (conveyance or any successor entity which other disposition, as applicable, to, of or with a separate Person. Any division of a limited liability company, limited partnership or trust shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants constitute a separate Person under this Indenture (and the Securities and may thereupon be dissolved and liquidatedeach division of any limited liability company, limited partnership or trust that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
Appears in 4 contracts
Samples: Indenture (Hannon Armstrong Sustainable Infrastructure Capital, Inc.), Indenture (Hannon Armstrong Sustainable Infrastructure Capital, Inc.), Indenture (Hannon Armstrong Sustainable Infrastructure Capital, 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 shall will not consolidate with any other entity or merge accept a merger of any other entity into the Company or permit the Company to be merged into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer sell other than for cash or lease all or substantially all its properties and assets to another entity, or purchase all or substantially as an entirety toall the assets of another entity, any Person, unless
unless (i) any Person formed either the Company shall be the continuing entity, or the successor, transferee or lessee entity (if other than the Company) shall expressly assume, by indenture supplemental hereto, executed and delivered by such consolidation entity prior to or into simultaneously with such consolidation, merger, sale or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudalease, the British Virgin Islandsdue and punctual payment of the principal of and interest and premium, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture if any, on all the Securities, according to their tenor, and the due and punctual performance and observance of all other obligations of to the Company Holders and the Trustee under this Indenture or under the Securities to be performed or observed by the Company; and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyancesale, transfer lease or lease and purchase the Company or the successor, transferee or lessee entity (if other than the Company) would not be in Default in the performance of any covenant or condition of this Indenture. A purchase by a Subsidiary of all or substantially all of the assets of another entity shall not be deemed to be a purchase of such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied withassets by the Company.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, lease of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 3 contracts
Samples: Indenture (Pdi Inc), Indenture (Kenexa Corp), Indenture (EnerSys)
Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01 with respect 6.04(a) of the Base Indenture shall be revised in its entirety to any series of Securitiesread:
(a) The Company shall not consolidate with any other entity or merge accept a merger of any other entity into the Company or permit the Company to be merged into any other Person in a transaction in which the Company is not the surviving entity, or conveysell all or substantially all its assets to another entity, transfer or lease its properties and assets substantially as an entirety to, any Person, unless
unless (i) any Person formed either the Company shall be the continuing entity, or the successor (if other than the Company) shall expressly assume, by indenture supplemental hereto, executed and delivered by such consolidation entity prior to or into simultaneously with such consolidation, merger, sale or with which lease, the Company is merged or due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to whom their tenor, and the Company has conveyed, transferred or leased its properties due and assets substantially as an entirety is a corporation, partnership, trust or punctual performance and observance of all other entity validly existing obligations to the Holders of Notes and the Trustee under the laws of Bermuda, Indenture or under the British Virgin Islands, Cayman Islands Notes to be performed or Hong Kong and such Person expressly assumes observed by an indenture supplemental to this Indenture all the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
Company; (ii) immediately after giving effect to the transactionsuch consolidation, merger or sale, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing; and
and (iii) the successor entity (if other than the Company) is a corporation or a limited liability company organized and validly existing under the laws of the United States or any jurisdiction thereof, Canada, Mexico, Switzerland, the United Kingdom or any other country that is a member country of the European Union on the date of this Supplemental Indenture, and in each case any jurisdiction, state or subdivision of the foregoing. In the event that the Company consolidates or merges with another entity or sells all or substantially all of its assets to another entity, the surviving entity will be substituted for the Company under the Indenture and may exercise the Company’s every right and power under the Notes and the Indenture, and the Company will be automatically and unconditionally released and discharged from all of its obligations under the Notes and the Indenture. For the avoidance of doubt, (i) this Section 2.10 shall not apply to transactions by and among the Company and its Subsidiaries unless the Company elects to have the covenant apply, (ii) the Company, directly or indirectly, may consolidate or otherwise combine with, merge into or transfer all or part of its assets to one or more of its Subsidiaries and (iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer may consolidate or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
(b) Upon any consolidation otherwise combine with or merger merge or amalgamate into any other entity, or any sale other than an Affiliate for cash, or any conveyance or lease, the purpose of all or substantially all of changing the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name legal domicile of the Company, reincorporating the Company in another jurisdiction, or in its own name; and any act or proceeding by any provision of this Indenture required or permitted to be done by changing the Board of Directors or any officer legal form of the Company may be done with like force and effect by the like board of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidatedCompany.
Appears in 3 contracts
Samples: Third Supplemental Indenture (Travel & Leisure Co.), Second Supplemental Indenture (Wyndham Destinations, Inc.), First Supplemental Indenture (Wyndham Destinations, 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 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, transfer, assign, lease, convey or otherwise dispose of all or substantially all of its Property in a any one transaction in which the Company is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to, any Person, series of transactions unless:
(i) any 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 or with which the Company is merged amalgamation or to whom the Company has conveyedwhich such sale, transferred transfer, assignment, lease, conveyance or leased its properties disposition is made shall be a corporation organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudathe United States of America, any State thereof or the British Virgin Islands, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations District of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposesColumbia;
(ii) the Surviving Person (if other than the Company) 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 any Default Interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture to be performed by the 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 or a group of related persons;
(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 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 transaction or series of transactions on a pro forma basis, the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Surviving Person shall have occurred and be continuing; anda 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;
(iiivi) the Company has delivered shall deliver, or cause to be delivered, to the Trustee Trustee, an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidationtransaction or series of transactions and the supplemental indenture, mergerif any, conveyance, transfer or lease and such supplemental indenture in respect thereto comply with this Indenture covenant and that all conditions precedent therein 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 withwith Section 4.12.
(b) Upon The Company shall not permit any consolidation Guarantor to merge, consolidate or amalgamate with or merger into any other entity, or any sale Person (other than for casha merger of a Wholly Owned Subsidiary into the Company or such Guarantor) or sell, or any conveyance or 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 assets of Surviving Person (if other than such Guarantor) expressly assumes, to the Company extent permitted by applicable laws, by supplemental indenture in accordance with this Section 6.04form satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Person, the successor entity formed by due and punctual performance and observance of all the obligations of such consolidation or into or with which the Company is merged or to which the Company 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 Guarantor under this Indenture with the same effect as if such successor entity had been named as the Company herein, and thereafter, except its Guarantee;
(ii) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the predecessor 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 clauses (iv) and (v) 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;
(iv) immediately after giving effect to such transaction or series of transactions on a pro forma basis, the Company shall be relieved of all obligations and covenants under this Indenture and have a Consolidated Net Worth in an amount which is not less than the Securities, and from time to time such entity may exercise each and every right and power Consolidated Net Worth of the Company under immediately prior to such transaction or series of transactions;
(v) 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 Indenturecovenant 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 name 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 the Company, or in its own name; and any act or proceeding by any provision of this Indenture required or permitted to be done by the Board of Directors or any officer of transactions which constitute an Asset Sale if the Company may be done has complied with like force and effect by the like board of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated4.12.
Appears in 3 contracts
Samples: Indenture (China Security & Surveillance Technology, Inc.), Indenture (China Security & Surveillance Technology, Inc.), Notes Purchase Agreement (China Security & Surveillance Technology, Inc.)
Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by established pursuant to Section 3.01 with respect to any series of Securities:
(a) The Company shall not consolidate with any other entity or merge accept a merger of any other entity into the Company or permit the Company to be merged into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer sell or lease its properties and all or substantially all of the Company’s assets substantially as an entirety toto another entity, any Personin one transaction or a series of related transactions, unless
unless (i) any Person formed by such consolidation or into or with which either the Company is merged shall be the continuing entity, or to whom the Company has conveyedsuccessor, transferred transferee or leased its properties and assets substantially as an entirety lessee entity (if other than the Company) is a corporation, partnership, trust or other entity corporation organized and validly existing under the laws of Bermudaany U.S. domestic jurisdiction and shall expressly assume, by indenture supplemental hereto, executed and delivered by such entity prior to or simultaneously with such consolidation, merger, sale or lease, the British Virgin Islandsdue and punctual payment of the principal of, Cayman Islands or Hong Kong premium, if any, and such Person expressly assumes by an indenture supplemental to this Indenture interest on all the Securities, according to their tenor, and the due and punctual performance and observance of all other obligations of to the Company Holders and the Trustee under this Indenture and or under the Securities, including Securities to be performed or observed by the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
Company; (ii) immediately after giving effect to before such consolidation, merger, sale or lease the transaction, no Event of DefaultCompany is not, and no event whichimmediately after such consolidation, after notice merger, sale or lapse lease, the Company or the successor, transferee or lessee entity (if other than the Company) would not be, in Default in the performance of time any covenant or both, would become an Event condition of Default, shall have occurred this Indenture; and be continuing; and
(iii) the Company has delivered shall deliver to the Trustee prior to the consummation of the proposed transaction an Officers’ Officer’s Certificate to the foregoing effect and an Opinion of Counsel, each Counsel stating that such consolidation, merger, conveyance, transfer or lease the proposed transaction and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied withSection 6.04.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cashsale, or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 3 contracts
Samples: Indenture (Tech Data Corp), Indenture (Tech Data Corp), Indenture (Tech Data Corp)
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 shall not will not, in any single transaction or series of related transactions, merge or consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entityPerson, or sell, assign, convey, transfer transfer, lease or lease its properties and assets substantially as an entirety to, any Person, unless
(i) any Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermuda, the British Virgin Islands, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, otherwise dispose of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries on a consolidated basis to any Person or group of Affiliated Persons, and the Company will not permit any of its Restricted Subsidiaries to enter into any such transaction or series of related transactions if such transaction or series of transactions, in accordance with this Section 6.04the aggregate, would result in the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries on a consolidated basis to any other Person or group of Affiliated Persons, unless at the time and after giving effect thereto:
(1) either (i) if the transaction is a merger or consolidation, the successor entity Company shall be the surviving Person of such merger or consolidation, or (ii) the Person (if other than the Company) formed by such consolidation or into or with which the Company is merged or to which the properties and assets of the Company is sold or its Restricted Subsidiaries, as the case may be, are sold, assigned, conveyed, 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 States of America, any state thereof or the District of Columbia and shall, in either case, expressly assume by a supplemental indenture to which such conveyancethis Indenture executed and delivered to the Trustee, transfer or lease is made shall succeed toin form satisfactory to the Trustee, and be substituted for, and may exercise every right and power of, all the obligations of the Company under the Notes and this Indenture with the same and, in each case, this Indenture shall remain in full force and effect;
(2) immediately after giving effect as if to such successor entity had been named as transaction or series of related transactions on a pro forma basis (and treating any Indebtedness not previously an obligation of the Company hereinor any of its Restricted Subsidiaries which becomes an obligation of the Company or any of its Restricted Subsidiaries 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 thereafter, be continuing;
(3) except in the case of the consolidation or merger of any Restricted Subsidiary with or into the Company or another Restricted Subsidiary, either:
(A) immediately before and immediately after giving effect to such transaction or transactions on a leasepro forma basis (assuming that the transaction or transactions occurred on the first day of the period of four fiscal quarters ending immediately prior to the consummation of such transaction or transactions, with the appropriate adjustments with respect to the transaction or transactions being included in such pro forma calculation), the predecessor Company (or the Surviving Entity if the Company is not the continuing obligor under this Indenture) could incur $1.00 of additional Indebtedness under Section 4.09(a); or
(B) immediately after giving effect to such transaction or transactions on a pro forma basis (assuming that the transaction or transactions occurred on the first day of the period of four fiscal quarters ending immediately prior to the consummation of such transaction or transactions, with the appropriate adjustments with respect to the transaction or transactions being included in such pro forma calculation), the Consolidated Fixed Charge Coverage Ratio of the Company (or the Surviving Entity if the Company is not the continuing obligor under this Indenture) will be equal to or greater than the Consolidated Fixed Charge Coverage Ratio of the Company immediately before such transaction or transactions;
(4) if the Company is not the continuing obligor under this Indenture, then each Subsidiary Guarantor, unless it is the Surviving Entity, shall be relieved have by supplemental indenture to this Indenture confirmed that its Subsidiary Guarantee of all the Notes shall apply to the Surviving Entity’s obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own nameNotes; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, and
(5) the Company (or any successor entity which shall theretofore have become such in the manner described in Surviving Entity if the Company is not the continuing obligor under this Section 6.04Indenture) shall be discharged from all obligations have delivered to the Trustee, in form and covenants substance reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer, lease or other disposition and any supplemental indenture in respect thereof comply with the requirements under this Indenture and that the Securities requirements of this paragraph have been satisfied. Notwithstanding the foregoing, this Section 5.01(a) shall not apply to any sale, assignment, transfer, conveyance, lease or other disposition of properties or assets between or among the Company and the Subsidiary Guarantors.
(b) Each Subsidiary Guarantor may thereupon be dissolved consolidate with or merge into or sell or otherwise dispose of all or substantially all of its properties and liquidatedassets to the Company or another Subsidiary Guarantor without limitation, except to the extent any such transaction is subject to Section 5.01(a). Each Subsidiary Guarantor may consolidate with or merge into or sell all or substantially all of its properties and assets to a Person other than the Company or another Subsidiary Guarantor (whether or not affiliated with the Subsidiary Guarantor); provided that (i) if the surviving Person is not the Subsidiary Guarantor, the surviving Person agrees to assume such Subsidiary Guarantor’s Subsidiary Guarantee and all its obligations pursuant to this Indenture (except to the extent Section 10.02 would result in the release of such Subsidiary Guarantee) and (ii) such transaction does not (x) violate Article 4 or (y) result in a Default or Event of Default immediately thereafter that is continuing.
Appears in 3 contracts
Samples: Indenture (Comstock Resources Inc), Indenture (Comstock Resources Inc), Indenture (Comstock Resources 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 shall Guarantor will not consolidate with any other entity or merge accept a merger of any other entity into the Guarantor or permit the Guarantor to be merged into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer sell other than for cash or lease all or substantially all its properties and assets to another entity, or purchase all or substantially as an entirety toall the assets of another entity, any Person, unless
unless (i) any Person formed either the Guarantor shall be the continuing entity, or the successor, transferee or lessee entity (if other than the Guarantor) shall expressly assume, by indenture supplemental hereto satisfactory to the Trustee, executed and delivered by such consolidation entity prior to or into simultaneously with such consolidation, merger, sale or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudalease, the British Virgin Islandsfull, Cayman Islands or Hong Kong irrevocable and such Person expressly assumes by an indenture supplemental to this Indenture unconditional guarantee of the payment of principal of and interest and premium, if any, on all the Securities (and Coupons, if any) when due, and the performance and observance of all other obligations of the Company to the holders and the Trustee under this Indenture or under the Securities (and Coupons, if any), all in accordance with the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
terms hereof and thereof; and (ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyancesale, transfer lease or lease and purchase the Guarantor or the successor, transferee or lessee entity (if other than the Guarantor) would not be in Default in the performance of any covenant or condition of this Indenture. A purchase by a Subsidiary of all or substantially all of the assets of another entity shall not be deemed to be a purchase of such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied withassets by the Guarantor.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cashsale, or any conveyance or lease, lease of all or substantially all of the assets of the Company Guarantor in accordance with this Section 6.0415.05, the successor entity formed by such consolidation or into or with which the Company Guarantor is merged or to which the Company 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 Guarantor under this Indenture with the same effect as if such successor entity had been named as the Company Guarantor herein, and thereafter, except in the case of a lease, the predecessor Company Guarantor shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidatedGuarantee.
Appears in 3 contracts
Samples: Indenture (Citigroup Inc), Indenture (Citigroup Inc), Indenture (Citigroup Funding 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 shall not will not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person in a transaction in which Person, or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company is not to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the surviving entity, or convey, transfer or lease its Company's properties and assets substantially as an entirety to, (determined on a consolidated basis for the Company and the Company's Restricted Subsidiaries) to any Person, Person unless:
(1) either: (i) any the Company shall be the surviving or continuing corporation; or (ii) the Person (if other than the Company) formed by or surviving such consolidation or into merger or with the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition all or substantially all of the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is of the Company and of the Company's Restricted Subsidiaries: (x) shall be a corporation, partnership, trust or other entity corporation organized and validly existing under the laws of Bermudathe United States or any State thereof or the District of Columbia; and (y) shall expressly assume, by supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the British Virgin IslandsCompany's obligation for the due and punctual payment of the principal of, Cayman Islands or Hong Kong premium, if any, and such Person expressly assumes by an indenture supplemental to interest on all of the Notes and the performance of every covenant of the Notes, this Indenture all Indenture, the obligations Collateral Agreements and the Registration Rights Agreement on the part of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized be performed or resident for tax purposesobserved;
(ii2) immediately after giving effect to the such transaction, no Event the Company or such surviving entity, as the case may be will be able to incur at least $1.00 of Defaultadditional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.12; provided that this clause (2) does not apply if, in the good faith determination of the Board of Directors of the Company, whose determination will be evidenced by a Board Resolution, the principal purpose of such transaction is to change the state of incorporation of the Company and no event which, after notice or lapse any such transaction will not have as one of time or both, would become an Event its purposes the evasion of Default, shall have occurred and be continuingthe foregoing limitations; and
(iii3) immediately after giving effect to such transaction or series of related transactions, no Default or Event of Default will have occurred or be continuing. In connection with any such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the Company has delivered or the surviving Person must deliver to the Trustee trustee, in form and substance reasonably satisfactory to the Trustee, an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyancesale, transfer assignment, transfer, lease, conveyance or lease and 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 therein provided for in this Indenture relating to such transaction have been complied withsatisfied.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 2 contracts
Samples: Credit Agreement (Golfsmith International Holdings Inc), Indenture (Golfsmith International Holdings Inc)
Merger, Consolidation and Sale of Assets. Except The Company will not, and will not cause or permit the Issuers to, and the Issuers will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company or the Issuers, as applicable, is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise provided dispose of all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and the Restricted Subsidiaries) or the Issuers, as contemplated by Section 3.01 with respect applicable, to any series of SecuritiesPerson (each such event involving the Company, a “Company Merger or Sale Event,” and each such event involving the Issuers, an “Issuer Merger or Sale Event”) unless:
(a) The Company shall not consolidate with either:
(1) except in the case of a consolidation or merge into any other Person in a transaction in which merger between the Company is not 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 entity, or convey, transfer or lease its properties and assets substantially as an entirety to, any continuing Person, unlessor
(i2) any the Person (if other than the Company or the Issuers, as applicable) formed by such consolidation or into or with which the Company or the Issuers, as applicable, is merged or to whom the Company has conveyedPerson which acquires by sale, transferred assignment, transfer, lease, conveyance or leased its 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 is (the “Surviving Entity”):
(i) will be a corporation, partnershippartnership or limited liability company organized or, trust or other entity validly as the case may be, incorporated and existing under the laws of the United States of America, any state thereof or the District of Columbia, Bermuda, Canada, Switzerland, Japan, any AAA Rated Country or any European Union Country; provided, that, in the British Virgin Islandscase of the Surviving Entity for Elan Finance Corp., Cayman Islands only the United States of America, any state thereof or Hong Kong the District of Columbia shall be permitted jurisdictions of organization or incorporation; and
(ii) will expressly assume, by supplemental indenture (in form and such Person expressly assumes by substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, all obligations of the Issuers under the Notes and this Indenture, in the case of an indenture supplemental to this Indenture Issuer Merger or Sale Event, or all the obligations of the Company under the Elan Note Guarantee and this Indenture Indenture, in the case of a Company Merger or Sale Event and all obligations of the SecuritiesIssuers or the Company, including as applicable, under the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposesRegistration Rights Agreement;
(iib) 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, and no event which, after notice or lapse of time or both, would become an Event of Default, shall Default will have occurred and or be continuing; and
(iiid) 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 such the consolidation, merger, conveyancesale, transfer assignment, transfer, lease, conveyance or lease and other disposition and, if required in connection with such transaction, the supplemental indenture 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 therein provided for in this Indenture relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entitysatisfied. For purposes of this Section 4.1, or any sale other than for cashthe sale, or any assignment, transfer, lease, conveyance or lease, other 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 in accordance (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 Restricted Subsidiary may merge or consolidate with this Section 6.04or into, or sell, assign, transfer, lease, convey or otherwise dispose of all or any part of its properties or assets to, the successor entity 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 by such consolidation solely for the purpose of either reincorporating or into reforming the Company or with the Issuers, as the case may be, in another jurisdiction listed in clause (a)(2)(i) above so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. Upon any Company Merger or Sale Event in which the Company is merged not the surviving or to which continuing Person, the Company is sold or to which such conveyance, transfer or lease is made shall Surviving Entity will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Elan Note Guarantee with the same effect as if such successor entity Surviving Entity had been named as such. Upon any Issuer Merger or Sale Event in which none of the Company hereinIssuers is the continuing Person, the Surviving Entity will succeed to, and thereafterbe substituted for, except in the case of a leaseand may exercise every right and power of, the predecessor Company shall be relieved of all obligations and covenants Issuers under this Indenture and the SecuritiesNotes with the same effect as if such Surviving Entity had been named as such. For the avoidance of doubt, and from time to time such entity may exercise each and every right and power compliance with this Section 4.1 will not affect the obligations of the Company Issuers under this IndentureSection 3.16, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidatedif applicable.
Appears in 2 contracts
Samples: Indenture (Elan Corp PLC), Indenture (Elan Corp PLC)
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 shall will not consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entitywith or into, or convey, transfer or lease lease, in one transaction or a series of transactions, its properties and assets substantially as an entirety to, any Person, unless:
(i) any the resulting, surviving or transferee Person formed by such consolidation or into or with which (the Company is merged or to whom the Company has conveyed, transferred or leased its properties "Successor Company") will be a Person organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly 58 50 existing under the laws of Bermudathe United States of America, any State thereof or the British Virgin IslandsDistrict of Columbia and the Suc cessor Company (if not the Company) will expressly assume, Cayman Islands or Hong Kong by supplemental indenture, executed and such Person expressly assumes by an indenture supplemental delivered to this Indenture the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposesIndenture;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of such Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall Default will have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the Successor Company will have a Consolidated Net Worth in an amount that is not less than the Consolidated Net Worth of the Company prior to such transaction minus any costs incurred in connection with such transaction; and
(iiiiv) the Company has will have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, merger or transfer or lease and such supplemental indenture (if any) comply with this Indenture. Opinions of Counsel required to be delivered under this Section or elsewhere in this Indenture and that all conditions precedent therein provided may have qualifications customary for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of all or substantially all opinions of the assets type required and counsel delivering such Opinions of Counsel may rely on certificates of the Company in accordance with this Section 6.04or government or other officials customary for opinions of the type required, including certificates certifying as to matters of fact. The Successor Company will be the successor entity formed by such consolidation or into or with which to the Company is merged or to which the Company is sold or to which such conveyance, transfer or lease is made shall and succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with Indenture, but the same effect as if such successor entity had been named as the Company hereinpredecessor company, and thereafter, except only in the case of a conveyance, transfer or lease, will not be released from the predecessor Company shall be relieved obligation to pay the principal of all obligations and covenants under this Indenture and interest on the Securities. Notwithstanding the foregoing, (i) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and from time assets to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of this Indenture required or permitted to be done by the Board of Directors or any officer of (ii) the Company may be done merge with like force and effect by an Affiliate incorporated for the like board pur- 59 51 pose of directors or officer of any entity that shall at the time be the successor of reincorporating the Company hereunder. In the event of any such sale in another jurisdiction to realize tax or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidatedother benefits.
Appears in 2 contracts
Samples: Indenture (Chief Auto Parts Inc), Indenture (Chief Auto Parts 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 shall not will not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person in Person, or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company’s assets (determined on a transaction in which consolidated basis for the Company is not and the surviving entity, Restricted Subsidiaries) whether as an entirety or convey, transfer or lease its properties and assets substantially as an entirety to, to any Person, Person unless:
(i1) any 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 or with which the Company is merged or to whom the Company has conveyedPerson which acquires by sale, transferred assignment, transfer, lease, conveyance or leased its other disposition the properties and assets of the Company and the Restricted Subsidiaries substantially as an entirety is (the “Surviving Entity”) (x) shall be a corporation, partnership, trust or other entity corporation organized and validly existing under the laws of Bermudathe 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 British Virgin IslandsTrustee), Cayman Islands or Hong Kong executed and such Person expressly assumes by an indenture supplemental delivered to this Indenture the Trustee, all of the obligations of the Company under its Note Guarantee and the performance of every covenant of the Note Guarantee and this Indenture and on the Securities, including part of the obligation Company to pay Additional Amounts with respect to any jurisdiction in which it is organized be performed or resident for tax purposesobserved;
(ii2) immediately after giving effect to such transaction 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), (A) 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 4.03 or (B) the Consolidated Fixed Charge Coverage Ratio of the Company or the Surviving Entity, as the case may be, is greater than such ratio immediately prior to such transaction; provided, however, that this clause (2) shall not be effective during any Suspension Period as described under Section 4.18;
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness Incurred or anticipated to be Incurred and any Lien granted or to be released in connection with or in respect of the transaction), no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing; and
(iii4) the Company has or the Surviving Entity shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyancesale, transfer assignment, transfer, lease, conveyance or lease and 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 Indenture, that all conditions precedent therein provided for in this Indenture relating to such transaction have been complied withsatisfied and that such supplemental indenture is the legal, valid and binding obligation of the Surviving Entity; provided that clauses (2) and (3) above do not apply to the consolidation or merger of the Company with or into, or the sale by the Company of all or substantially all its assets to, a Wholly Owned Restricted Subsidiary or the consolidation or merger of a Wholly Owned Restricted Subsidiary with or into, or the sale by such Subsidiary of all or substantially all of its assets to, the Company.
(b) Upon any consolidation with or merger into any other entityFor purposes of the foregoing, or any sale other than for cash, or any conveyance or 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, 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) The Issuer will not, and the Company will not permit the Issuer to, in accordance a single transaction or series of related transactions, consolidate or merge with this Section 6.04or into any Person, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the successor Issuer’s assets whether as an entirety or substantially as an entirety to any Person unless:
(1) either (A) the Issuer shall be the surviving or continuing entity or (B) the Person (if other than the Issuer) formed by such consolidation or into or with which the Company Issuer is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Issuer substantially as an entirety shall expressly assume, by supplemental indenture (in form and substance satisfactory to which 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 Issuer to be performed or observed;
(2) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness Incurred or anticipated to be Incurred and any Lien granted or to be released in connection with or in respect of the transaction), no Default or Event of Default shall have occurred and be continuing; and
(3) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is sold required in connection with such transaction, such supplemental indenture comply with the applicable provisions of this Indenture, that all conditions precedent in this Indenture relating to such transaction have been satisfied and that such supplemental indenture is the legal, valid and binding obligation of the surviving or continuing entity; provided that clause (2) does not apply to which such conveyancethe consolidation or merger of the Issuer with or into, transfer or lease is made shall succeed the sale by the Issuer of all or substantially all its assets to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with or a Wholly Owned Restricted Subsidiary or the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power consolidation or merger of the Company or a Wholly Owned Restricted Subsidiary with or into, the Issuer.
(d) No Subsidiary Guarantor (other than any Subsidiary Guarantor whose Note Guarantee is to be released in accordance with Section 10.05 in connection with any transaction complying with the provisions of Section 4.05) will, 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 any other Subsidiary Guarantor or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its assets other than to the Company or any other Subsidiary Guarantor unless:
(1) (A) either (x) the Subsidiary Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person is a corporation organized and existing under this Indenture, in the name laws of the Company, or in its own name; and any act or proceeding by any provision of this Indenture required or permitted to be done by the Board of Directors United States or any officer State thereof or the District of Columbia or the jurisdiction of such Subsidiary Guarantor and expressly assumes by supplemental indenture all of the Company may be done with like force and effect by the like board of directors or officer of any entity that shall at the time be the successor obligations of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants Subsidiary Guarantor under this Indenture and the Securities and may thereupon be dissolved and liquidated.its Note Guarantee; and
Appears in 2 contracts
Samples: Indenture (Dana Inc), Indenture (Dana 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 shall not consolidate with or merge with or into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer or lease all or substantially all of its properties and assets substantially as an entirety to, to any Person, unless:
(i) any Person formed by such consolidation the resulting, surviving or into or with which transferee Person, if not the Company is merged or to whom the Company has conveyedCompany, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly corporation organized and existing under the laws of Bermudathe United States of America, any State thereof or the British Virgin IslandsDistrict of Columbia, Cayman Islands or Hong Kong and such Person Person, if not the Company, expressly assumes by an supplemental indenture supplemental to this Indenture all the obligations of the Company Company’s obligations under any Securities and this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposesIndenture;
(ii) immediately after giving effect to the such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have Default has occurred and be continuingis continuing under this Indenture; and
(iii) the Company has delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply complies with this Indenture Section 10.9 and that all conditions precedent therein herein provided for relating to such transaction have been complied with.
(b) Upon any consolidation with of the Company with, or merger into of the Company into, any other entity, Person or any sale other than for cashconveyance, transfer or any conveyance or lease, lease of all or substantially all of the properties and assets of the Company in accordance with this Section 6.0410.9(a), the successor entity Person formed by such consolidation or into or with which the Company is merged or to which the Company 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 under this Indenture with the same effect as if such successor entity Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company Person shall be relieved of all obligations and covenants under this Indenture and the any Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
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 shall not consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to, any Person, unless
(i) any Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermuda, the British Virgin Islands, the Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion opinion of Independent Legal Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
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 Borrower shall not consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to, with any Person, or effect a Change in Bank Ownership, unless
: (i) any Person formed by the successor entity which results from such consolidation or into merger, if not Borrower, or with the Person which acquires the Company is merged assets of Borrower or to whom the Company has conveyedstock of the Bank from such Change in Bank Ownership (the “Surviving Entity”), transferred or leased its properties (A) shall be organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudathe United States or any State thereof or the District of Columbia, and (B) shall have either (x) executed and delivered to the British Virgin IslandsLenders its assumption of the due and punctual payment of the principal of and premium, Cayman Islands if any, and interest on the Term Loan, and the due and punctual performance and observation of all of the covenants in the Term Loan, and this Agreement and shall furnish to such Lenders an opinion of counsel to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the Surviving Entity enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles, or Hong Kong (y) exchanged the Term Loan for a subordinated term loan of the Surviving Entity or the parent of the Surviving Entity, and such Person expressly assumes by an indenture supplemental subordinated term loan shall have the same economic terms as the Term Loan, including but not limited to, principal amount, interest rate, maturity and any other term that would require the consent of each Lender to this Indenture all amend under Section 1.1(a) hereunder, and such other rights, preferences, privileges and covenants that are not materially less favorable than the obligations rights, preferences, privileges and covenants of the Company under this Indenture Term Loan; and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to such transaction and treating any indebtedness that becomes an obligation of Borrower as a result of such transaction as having been incurred by Borrower at the time of such transaction, no Event of Default, and no event which, after notice Default or lapse of time or both, would become an potential Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied withDefault would exist.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 2 contracts
Samples: Subordinated Loan Agreement, Subordinated Loan Agreement (First National Corp /Va/)
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 shall not consolidate with, merge with or merge into any other Person in a transaction in which the Company is not the surviving entityinto, or sell, convey, transfer transfer, lease or lease otherwise dispose of all or substantially all of its properties property and assets substantially as an entirety (in one transaction or a series of related transactions) to, any PersonPerson (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 Person to merge with or into the Company unless:
(i) any either (A) the Company shall be the continuing Person or (B) the Person formed by such consolidation or into or with which the Company is merged or to whom that acquired or leased such property and assets of the Company has conveyed, transferred or leased its properties shall be a corporation organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudathe United States of America or any jurisdiction thereof (or, any entity not organized under such laws which agrees (I) to subject itself to the British Virgin Islandsjurisdiction of the United States district court for the Southern District of New York, Cayman Islands and (II) to indemnify and hold harmless the Holders of all Notes against (y) any tax, assessment or Hong Kong 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 making of, any payment of principal of or interest on such Person Notes and which would not have been so imposed and withheld had such consolidation, merger, sale or conveyance not been made and (z) 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 assumes assume, by an indenture a supplemental indenture, executed and delivered to this Indenture the Trustee, all of the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposesNotes;
(ii) immediately after giving effect to the such transaction, no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default under the Indenture shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease Counsel as to the matters set forth in the preceding clauses (i) and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction (ii) shall have been complied withdelivered to the Trustee.
(b) 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 into a single direct or indirect wholly-owned Subsidiary pursuant to Section 905 (or any successor provision) of the Business Corporation Law of the State of New York.
(c) Upon any consolidation with or merger into any other entitymerger, or any sale sale, conveyance, transfer, lease or other than for cash, or any conveyance or lease, disposition of all or substantially all of the property and assets of the Company in accordance with this Section 6.045.4, the if there is a successor, such 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 conveyance, transfer or lease is made shall succeed to, and be substituted for, for the Company and may exercise every right and power of, under the Company under this Indenture with the same effect as if such successor entity had been named as in place of the Company hereinin the Indenture, and thereafter, the Company shall (except in the case of a lease, the predecessor Company shall be relieved lease of all obligations or substantially all of property and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name assets of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this the Indenture and the Securities and may thereupon be dissolved and liquidatedNotes.
Appears in 2 contracts
Samples: Third Supplemental Indenture (Arrow Electronics Inc), Second Supplemental Indenture (Arrow Electronics 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 shall not will not, in a single transaction or series of related transactions, amalgamate, consolidate or merge with or merge into any other Person in a transaction in which Person, or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company is not to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the surviving entityCompany’s assets (determined on a consolidated basis for the Company and the Company’s Restricted Subsidiaries), whether as an entirety or convey, transfer or lease its properties and assets substantially as an entirety toentirety, to any Person, Person unless:
(i1) any 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 or with which the Company is amalgamated, merged or to whom the Company has conveyedPerson which acquires by sale, transferred assignment, transfer, lease, conveyance or leased its other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety is a corporation, partnership, trust (the “Surviving Entity”):
(i) shall be an entity organized or other entity validly existing under the laws of Bermudathe United States or any State or territory 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 the United States or any State or territory thereof or the District of Columbia; and
(ii) shall expressly assume, by supplemental indenture, executed and delivered to the Trustee, the British Virgin Islandsdue and punctual payment of the principal of, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes and this Indenture all on the obligations part of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized be performed or resident for tax purposesobserved;
(ii2) 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, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and or be continuing; and
(iii4) the Company has 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, conveyancesale, transfer assignment, transfer, lease, conveyance or lease and 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 therein provided for in this Indenture relating to such transaction have been complied with.
satisfied. For purposes of the foregoing, the transfer (b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or 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 in accordance with this Section 6.04, the successor entity formed by such consolidation one or into or with which the Company is merged or to which the Company 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 under this Indenture with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or in its own name; substantially all of the properties and any act or proceeding by any provision assets of this Indenture required or permitted the Company, shall be deemed to be done by the Board transfer of Directors all or any officer substantially all of the properties and assets of the Company.
(b) Any amalgamation, merger or consolidation of, or sale, assignment, transfer, lease, conveyance or other disposition of assets by, a Guarantor with the Company (with the Company being the surviving entity in case of an amalgamation, merger of consolidation) or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company may be done need only comply with like force and effect by the like board of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated5.01(a)(4).
Appears in 2 contracts
Samples: Indenture (Carriage Services Inc), Indenture (Carriage Services Inc)
Merger, Consolidation and Sale of Assets. Except as The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise provided as contemplated by Section 3.01 with respect dispose of all or substantially all of the Company’s properties and assets (determined on a consolidated basis for the Company and its Subsidiaries), to any series of SecuritiesPerson unless:
(a) The either:
(1) the Company shall not consolidate with or merge into any other Person in a transaction in which the Company is not be the surviving entityor continuing corporation, or convey, transfer or lease its properties and assets substantially as an entirety to, any Person, unlessor
(i2) any the Person (if other than the Company) formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyedPerson which acquires by sale, transferred assignment, transfer, lease, conveyance or leased its other disposition the properties and assets of the Company and of the Company’s Subsidiaries substantially as an entirety is a corporation(the “Surviving Entity”):
(A) shall be an entity organized or incorporated, partnershipas applicable, trust or other entity and validly existing under the laws of Bermuda(i) the Grand Duchy of Luxembourg, (ii) the United States of America, any State thereof or the District of Columbia, (iii) the Federative Republic of Brazil, (iv) the British Virgin Islands, Cayman Islands (v) Panama or Hong Kong (vi) any country which is a member country of the Organization for Economic Co-Operation and such Person Development, and
(B) shall expressly assumes assume, by an supplemental indenture supplemental to this Indenture all of the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuingNotes; and
(iiib) the Company or the Surviving Entity has delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such the consolidation, merger, conveyancesale, transfer assignment, transfer, lease, conveyance or lease and other disposition and, if required in connection with such transaction, the supplemental indenture indenture, comply with the applicable provisions of this Indenture and that all conditions precedent therein provided for in this Indenture relating to such the transaction have been complied with.
satisfied. The Subsidiary Guarantor (bunless the Note Guarantee of the Subsidiary Guarantor is to be released in accordance with the terms of the Note Guarantee and this Indenture) Upon any consolidation will not, in a single transaction or series of related transactions, consolidate or merge with or merger into any other entityPerson (whether or not the Subsidiary Guarantor is the surviving or continuing Person), or any sale other than for cashsell, or any conveyance or assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of the Company Subsidiary Guarantor (determined on a consolidated basis for the Subsidiary Guarantor and its Subsidiaries), to any Person unless:
(1) the Person acquiring the property in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not disposition or the Person formed by or surviving any such consolidation or merger (if other than the Subsidiary Guarantor) shall expressly assume all of the obligations of the Subsidiary Guarantor under its Note Guarantee; and
(2) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(A) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing. The provisions of this Section 5.01 will not apply to any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of properties and assets, of the Subsidiary Guarantor to the Company (or any successor entity which shall theretofore have become such in consolidation or merger among the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture Subsidiary Guarantor and the Securities and may thereupon be dissolved and liquidatedCompany.
Appears in 2 contracts
Samples: Indenture, Indenture (Arazi S.a r.l.)
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 shall Guarantor will not consolidate with any other entity or merge accept a merger of any other entity into the Guarantor or permit the Guarantor to be merged into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer sell other than for cash or lease all or substantially all its properties and assets to another entity, or purchase all or substantially as an entirety toall the assets of another entity, any Person, unless
unless (i) any Person formed either the Guarantor shall be the continuing entity, or the successor, transferee or lessee entity (if other than the Guarantor) shall expressly assume, by indenture supplemental hereto satisfactory to the Trustee, executed and delivered by such consolidation entity prior to or into simultaneously with such consolidation, merger, sale or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudalease, the British Virgin Islandsfull, Cayman Islands or Hong Kong irrevocable and such Person expressly assumes by an indenture supplemental to this Indenture unconditional guarantee of the payment of principal of and interest and premium, if any, on all the Securities (and Coupons, if any) when due, and the performance and observance of all other obligations of the Company to the holders and the Trustee under this Indenture or under the Securities (and Coupons, if any), all in accordance with the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
terms hereof and thereof; and (ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyancesale, transfer lease or lease and purchase the Guarantor or the successor, transferee or lessee entity (if other than the Guarantor) would not be in Default in the performance of any covenant or condition of this Indenture. A purchase by a Subsidiary of all or substantially all of the assets of another entity shall not be deemed to be a purchase of such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied withassets by the Guarantor.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cashsale, or any conveyance or lease, lease of all or substantially all of the assets of the Company Guarantor in accordance with this Section 6.041505, the successor entity formed by such consolidation or into or with which the Company Guarantor is merged or to which the Company 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 Guarantor under this Indenture with the same effect as if such successor entity had been named as the Company Guarantor herein, and thereafter, except in the case of a lease, the predecessor Company Guarantor shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidatedGuarantee.
Appears in 2 contracts
Samples: Indenture (Citigroup Inc), Indenture (Citigroup Funding 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 shall will not consolidate with any other entity or merge accept a merger of any other entity into the Company or permit the Company to be merged into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer sell other than for cash or lease all or substantially all its properties and assets to another entity, or purchase all or substantially as an entirety toall the assets of another entity, any Person, unless
unless (i) any Person formed either the Company shall be the continuing entity, or the successor, transferee or lessee entity (if other than the Company) shall expressly assume, by indenture supplemental hereto, executed and delivered by such consolidation entity prior to or into simultaneously with such consolidation, merger, sale or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudalease, the British Virgin Islandsdue and punctual payment of the principal of, Cayman Islands premium, if any, or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture interest on all the Securities, according to their tenor, and the due and punctual performance and observance of all other obligations of to the Company Holders and the Trustee under this Indenture or under the Securities to be performed or observed by the Company; and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyancesale, transfer lease or lease and purchase the Company or the successor, transferee or lessee entity (if other than the Company) would not be in Default in the performance of any covenant or condition of this Indenture. A purchase by a Subsidiary of all or substantially all of the assets of another entity shall not be deemed to be a purchase of such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied withassets by the Company.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, lease of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 2 contracts
Samples: Indenture (Alkermes Plc.), Indenture (Dollar Thrifty Automotive Group 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 shall not Neither Issuer will consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entityor sell, or convey, transfer or lease all or substantially all its properties and assets substantially as an entirety to, to any other Person, unless
unless (i) any the Person formed by such consolidation or into or with which the Company such Issuer is merged or to whom the Company has conveyedwhich such sale, transferred conveyance, transfer or leased its properties lease is made shall expressly assume, by indenture supplemental hereto, executed and assets substantially as an entirety is a corporationdelivered by such Person prior to or simultaneously with such consolidation, partnershipmerger, trust sale, conveyance, transfer or other entity validly existing under the laws of Bermudalease, the British Virgin Islandsdue and punctual payment of the principal of and interest and premium, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture if any, on all the Securities, according to their tenor, and the due and punctual performance and observance of all other obligations of to the Company Holders and the Trustee under this Indenture or under the Securities to be performed or observed by such Issuer; and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transactionsuch consolidation, merger, sale, conveyance, transfer or lease, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing; and
. Clause (iiiii) of the Company has delivered immediately-preceding sentence shall not apply to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger(A) any sale, conveyance, transfer or lease between or among the either of the Issuers and one or more Wholly Owned Subsidiaries of such supplemental indenture comply with this Indenture and that all conditions precedent therein provided Issuer, (B) any merger of either of the Issuers into any Wholly Owned Subsidiary of such Issuer or (C) any merger of either of the Issuer into an Affiliate of such Issuer solely for relating to the purpose of such transaction have been complied withIssuer reincorporating or reorganizing in another jurisdiction.
(b) Upon any consolidation of either of the Issuers with or merger of either of the Issuers into any other entityPerson, or any sale other than for cashsale, conveyance, transfer or any conveyance or lease, lease of all or substantially all of the assets of either of the Company Issuers to any other Person, in accordance with this Section 6.04, the successor entity Person formed by such consolidation or into or with which the Company such Issuer 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 such Issuer under this Indenture with the same effect as if such successor entity Person had been named as the Company such Issuer herein, 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 this Indenture and the Securities, and from time to time such entity Person may exercise each and every right and power of the Company such Issuer under this Indenture, in the name of the Companysuch Issuer, or in its own name; and any act or proceeding by any provision of this Indenture required or permitted to be done by the such Issuer’s Board of Directors or any officer of the Company such Issuer may be done with like force and effect by the like board of directors or officer of any entity Person that shall at the time be the successor of the Company such Issuer hereunder. In the event of any such sale sale, conveyance or conveyancetransfer, but not any such lease, the Company such Issuer (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be relieved of and discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 2 contracts
Samples: Indenture (J C Penney Co Inc), Indenture (J C Penney Co 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 shall not consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to, any Person, unless
(i) any Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermuda, the British Virgin Islands, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion opinion of External Legal Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
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 shall not not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person in a transaction in which (whether or not the Company is not the surviving entityor continuing Person), or conveysell, transfer assign, transfer, lease, convey or lease its 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 substantially as an entirety to(determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person, Person unless:
(1) either:
(i) any the Company shall be the surviving or continuing corporation, or
(ii) the Person (if other than the Company) formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyedPerson which acquires by sale, transferred assignment, transfer, lease, conveyance or leased its other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety is (the “Surviving Entity”):
(A) shall be a corporation, partnership, trust or other entity organized and validly existing under the laws of BermudaMexico or the United States of America, any State thereof or the District of Columbia, and
(B) shall expressly assume, by supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the British Virgin Islandsdue and punctual payment of the principal of, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture all on the obligations part of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized be performed or resident for tax purposesobserved;
(ii2) immediately after giving effect to such transaction and the assumption contemplated by Section (a)(1)(ii)(B) of this Section 4.1 (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 Surviving Entity, as the case may be:
(i) will be able to Incur at least US$1.00 of additional Indebtedness pursuant to Section 3.9(a), or
(ii) will have a Consolidated Fixed Charge Coverage Ratio of not less than the Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries immediately prior to such transaction; provided that provisions of the subsection (2)(i) above shall not apply to:
(A) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to a Subsidiary Guarantor;
(B) any merger of a Restricted Subsidiary into the Company or a Subsidiary Guarantor; or
(C) 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; so long as, in each case the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
(3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by Section (a)(1)(ii)(B) of this Section 4.1 (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and or be continuing; ;
(4) each Subsidiary Guarantor (including Persons that become Subsidiary Guarantors as a result of the transaction) has confirmed by supplemental indenture that its Note Guarantee will apply for the Obligations of the Surviving Entity in respect of this Indenture and the Notes;
(5) if the Company is organized under Mexican law and merges with a corporation, or the Surviving Entity is, organized under the laws of the United States, any State thereof or the District of Columbia or the Company is organized under the laws of the United States, any State thereof or the District of Columbia and merges with a corporation, or the Surviving Entity is, organized under the laws of Mexico, the Company or the Surviving Entity will have delivered to the Trustee an Opinion of Counsel from each of Mexico and the United States to the effect that, as applicable:
(i) the holders of the Notes will not recognize income, gain or loss for U.S. or Mexican income tax purposes as a result of the transaction and will be taxed in the holder’s home jurisdiction in the same manner and on the same amounts (assuming solely for this purpose that no Additional Amounts are regarded to be paid on the Notes) and at the same times as would have been the case if the transaction had not occurred,
(ii) any payment of interest or principal under or relating to the Notes or any Note Guarantees will be paid in compliance with any requirements under Section 3.21, and
(iii) no other taxes on income, including capital gains, will be payable by holders of the Notes under the laws of Mexico or the United States relating to the acquisition, ownership or disposition of the Notes, including the receipt of interest or principal thereon; provided that the holder does not use or hold, and is not deemed to use or hold the Notes in carrying on a business in Mexico or the United States, and
(6) the Company or the Surviving Entity has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such the consolidation, merger, conveyancesale, transfer assignment, transfer, lease, conveyance or lease and other disposition and, if required in connection with such transaction, the supplemental indenture indenture, comply with the applicable provisions of this Indenture and that all conditions precedent therein provided for herein relating to such the transaction have been complied withsatisfied.
(b) Upon any consolidation with or merger into any other entityFor purposes of this Section 4.1, or any sale other than for cash, or any conveyance or the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), 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 properties and assets of the Company and its Restricted Subsidiaries in accordance with this Section 6.044.1, in which the Company is not the continuing corporation, the successor entity Surviving 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 conveyance, lease or 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 Notes with the same effect as if such successor entity Surviving Entity had been named as such. For the Company hereinavoidance of doubt, and thereafter, except in compliance with this Section 4.1 will not affect the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company (including a Surviving Entity, if applicable) under this IndentureSection 3.8, in if applicable.
(d) Each Subsidiary Guarantor shall not, and the name Company shall not cause or permit any Subsidiary Guarantor to, consolidate with or merge into, or sell or dispose of all or substantially all of its assets to, any Person (other than the Company) that is not a Subsidiary Guarantor unless:
(1) such Person (if such Person is the surviving entity) assumes all of the Companyobligations of such Subsidiary Guarantor in respect of its Note Guarantee by executing a supplemental indenture and providing the Trustee with an Officers’ Certificate and Opinion of Counsel, or and such transaction is otherwise in its own name; and any act or proceeding by any provision of this Indenture required or permitted compliance herewith;
(2) such Note Guarantee is 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any released as provided under Section 10.2 or
(3) such sale or conveyance, but not any other disposition of substantially all of such lease, the Company (or any successor entity which shall theretofore have become such Subsidiary Guarantor’s assets is made in the manner described in this accordance with Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated3.12.
Appears in 2 contracts
Samples: Indenture (Homex Development Corp.), Indenture (Homex Development Corp.)
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 shall not Issuer may consolidate with, sell, convey or lease (and may cause or permit any Restricted Subsidiary of the Issuer to sell, convey or lease) all or substantially all of the Issuer’s assets to, or merge with or merge into into, any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to, any Person, unlessonly if:
(i1) any either (x) the Issuer is the continuing corporation or (y) the successor Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity corporation organized and validly existing under the laws of Bermuda, the British Virgin Islands, Cayman Islands United States or Hong Kong any state thereof or the District of Columbia and such Person expressly assumes by an indenture supplemental the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of the Notes and this Indenture all to be performed or observed by the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposesIssuer;
(ii2) immediately after giving effect to the transactionsuch merger, consolidation, sale, conveyance or lease, no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and or be continuing; and
(iii3) in the Company has case of (1)(y) above, the Issuer or such successor corporation shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such merger, consolidation, mergersale, conveyance, transfer conveyance or lease and and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture indenture, comply with the applicable provisions of this Indenture and that all conditions precedent therein provided for in this Indenture relating to such transaction have been complied withsatisfied.
(b) Upon any consolidation with For purposes of Section 5.01(a), the sale, lease or merger into any other entityconveyance of all the assets, or any sale other than for cash, or any conveyance or leasesubstantially all the assets, of one or more Restricted Subsidiaries of the Issuer, the Equity Interests of which constitutes all or substantially all of the assets of the Company Issuer, shall be deemed to be the transfer of substantially all the assets of the Issuer.
(c) Upon any such merger, consolidation, sale, conveyance or lease in accordance with this Section 6.045.01, in which the Issuer is not the continuing corporation, the successor entity corporation formed by such consolidation or into or with which the Company Issuer is merged or to which the Company is sold or to which such conveyancesale, transfer conveyance or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company Issuer under this Indenture and the Notes with the same effect as if such successor surviving entity had been named as such.
(d) Notwithstanding the Company hereinforegoing, this Section 5.01 will not apply to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Issuer and thereafter, except in the case any one or more of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power its Restricted Subsidiaries or between or among any one or more of the Company under this Indenture, in Issuer’s Restricted Subsidiaries. Section 5.01(a)(2) will not apply to (i) any merger or consolidation of any Restricted Subsidiary with or into the name Issuer or (ii) a merger or consolidation of the Company, Issuer with or in its own name; and any act or proceeding by any provision of this Indenture required or permitted to be done by the Board of Directors or any officer into an affiliate of the Company may be done with like force and effect by Issuer solely for the like board purpose of directors or officer of any entity that shall at reincorporating the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such Issuer in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidatedanother jurisdiction.
Appears in 2 contracts
Samples: Indenture (Pitney Bowes Inc /De/), Indenture (Pitney Bowes Inc /De/)
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 shall not Except as provided in Section 11.7 or paragraph (b) of this Section, the Trust may merge or consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to, any Person, unless
(i) any Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnershipassociation, trust or other entity validly existing under the laws of Bermudaorganization or may sell, the British Virgin Islands, Cayman Islands lease or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of exchange all or substantially all of the assets Trust Property or the property, including its good will, upon such terms and conditions and for such consideration when and as authorized by two-thirds of the Company in accordance with Trustees, followed by approval by a Majority Shareholder Vote, and any such merger, consolidation, sale, lease or exchange shall be determined for all purposes to have been accomplished under and pursuant to the statutes of the State of Delaware.
(b) Notwithstanding paragraph (a) of this Section 6.04Section, if such action has been approved by eighty percent (80%) of the Trustees, the successor entity formed by such consolidation Trust may merge or into consolidate with, or with which may sell, lease or exchange all or substantially all of the Company is merged Trust Property or to which the Company is sold or to which such conveyanceproperty, transfer or lease is made shall succeed including its good will, to, any other corporation, association, trust or other organization that is, or will be immediately after giving effect to such transaction, registered as an investment company under the 1940 Act (or a series thereof) and:
(i) no Fundamental Policy of the Trust is materially different from a Fundamental Policy of such registered investment company;
(ii) no advisory agreement between the Trust and be substituted for, any investment adviser thereof is materially different from an advisory contract between such registered investment company and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor entity had been named as the Company herein, and thereafterany investment adviser thereof, except for the identity of the investment companies as a party to the contract;
(iii) Trustees of the Trust who are not “interested persons” (as defined in the case 0000 Xxx) of the Trust and who were elected by Shareholders will comprise a majority of the trustees or directors (or members of a lease, the predecessor Company shall be relieved similar governing body) of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, registered investment company who are not “interested persons” (as defined in the name 0000 Xxx) of the Company, or such registered investment company; and
(iv) such registered investment company has provisions in its own name; governing documents substantially equivalent to Sections 10.4, 10.6, 11.1, 11.2, 11.3, 11.4, 11.5, 11.6 and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated11.7.
Appears in 1 contract
Samples: Agreement and Declaration of Trust (XAI Octagon Credit Trust)
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 shall 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 in a transaction in which the Company is not the surviving entity, or convey, transfer sell (other than for cash) or lease all or substantially all its properties and assets substantially as an entirety toto another entity, any Person, unless
unless (i) any Person formed by such consolidation or into or with which either the Company is merged shall be the continuing entity, or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermuda, the British Virgin Islands, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect the successor, transferee or lessee entity (if other than the Company) shall expressly assume, by indenture supplemental hereto, executed and delivered by such entity prior to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that simultaneously with such consolidation, merger, conveyancesale or lease, transfer or lease the due and such supplemental indenture comply with punctual payment of the principal of and interest and premium, if any, on all the Securities, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under this Indenture and that all conditions precedent therein provided for relating or under the Securities to such transaction have been complied withbe performed or observed by the Company.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, lease of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 1 contract
Samples: Indenture (LHC Group, Inc)
Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01 with respect to any The Indenture shall provide that the Company may not, in a single transaction or through a series of Securities:
(a) The Company shall not related transactions, consolidate with or merge into any other with or into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its assets to, another Person in or adopt a transaction in which plan of liquidation, unless (a) either the Company is not shall be the survivor of such merger or consolidation or the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to, any Person, unless
(i) any Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, limited liability company or trust or other entity validly organized and existing under the laws of Bermudathe United States, any state thereof or the British Virgin Islands, Cayman Islands or Hong Kong District of Columbia and such surviving Person shall expressly assumes assume, by an indenture a supplemental to this Indenture indenture, all the obligations of the Company under this Indenture the Notes and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
related Indenture; (iib) immediately after giving effect to such transaction (on a pro forma basis, including any Indebtedness incurred or anticipated to be incurred in connection with such transaction), the transactionCompany or the surviving Person is able to incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with the "Limitation on Incurrence of Additional Indebtedness" covenant, (c) immediately after giving effect to such transaction and the assumption of the obligations set forth in clause (a) above and the incurrence of any Indebtedness to be incurred in connection therewith, no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing; and
continuing and (iiid) the Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, or 40 transfer or lease adoption and such supplemental indenture comply with this Indenture the Indenture, that the surviving Person (if other than the Company) agrees to be bound thereby and that all conditions precedent therein provided for in the Indenture relating to such transaction have been complied with.
satisfied. Notwithstanding the foregoing clauses (b), (c) Upon and (d), any consolidation with Restricted Subsidiary of the Company may consolidate with, merge into or merger into any other entitytransfer all or part of its properties and assets to the Company. For purposes of the foregoing, or any sale other than for cash, or any conveyance or the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties and assets of the Company in accordance with this Section 6.04one or more Restricted Subsidiaries, the successor entity formed by such consolidation Capital Stock of which constitutes all or into or with which the Company is merged or to which the Company 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 under this Indenture with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of substantially all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name properties and assets of the Company, or in its own name; and any act or proceeding by any provision of this Indenture required or permitted 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 of directors or officer of any entity that shall at the time be the successor assets of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidatedCompany.
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 shall not not, in a single transaction or a series of related transactions, consolidate with or merge into with or into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Company's or any other Guarantor's assets determined on a consolidated basis for the Company to another Person in or adopt a transaction in which plan of liquidation unless (a) either (i) the Company is not the surviving entity, Surviving Person or convey, transfer or lease its properties and assets substantially as an entirety to, any Person, unless
(i2) any the Person (if other than the Company) formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyedPerson that acquires by conveyance, transferred transfer or leased its lease the properties and assets of the Company or such Guarantor substantially as an entirety is or in the case of a plan of liquidation, the Person to which assets of the Company have been transferred, shall be a corporation, partnership, limited liability company or trust or other entity validly organized and existing under the laws of Bermuda, the British Virgin Islands, Cayman Islands United States or Hong Kong and any State thereof or the District of Columbia; (b) such Surviving Person expressly assumes by an indenture supplemental to this Indenture shall assume all of the obligations of the Company or such Guarantor under the Securities and this Indenture pursuant to a supplemental indenture in a form and substance reasonably satisfactory to the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
Trustee; (iic) immediately after giving effect to such transaction and the use of the proceeds therefrom (on a pro forma basis, including giving effect to any Indebtedness incurred or anticipated to be incurred in connection with such transaction), (x) no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuingcontinuing and (y) the Company (in the case of clause (i) of the foregoing clause (a)) or such Person (in the case of clause (ii) of the foregoing clause (a)) shall be able to incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.04; and
and (iiid) the Company has delivered to the Trustee prior to the consummation of the proposed transaction an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, merger or transfer or lease and such supplemental indenture comply complies with this Indenture and that all conditions precedent therein provided for in this Indenture relating to such transaction have been complied with.
satisfied. For purposes of the foregoing, the transfer (b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or 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 the Company in accordance with this Section 6.04one or more Restricted Subsidiaries, the successor entity formed by such consolidation Capital Stock of which constitutes all or into or with which the Company is merged or to which the Company 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 under this Indenture with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of substantially all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name properties or assets of the Company, or in its own name; and any act or proceeding by any provision of this Indenture required or permitted shall be deemed to be done by the Board transfer of Directors all or substantially all of the properties and assets of the Company. Notwithstanding the foregoing clauses (b) and (c), (A) 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 of directors or officer of any entity that shall at the time be the successor of assets to the Company hereunder. In the event of any such sale or conveyance, but not any such lease, and (B) the Company (or any successor entity which shall theretofore have become such may merge with an Affiliate thereof organized solely for the purpose of reorganizing the Company in another jurisdiction in the manner described in this Section 6.04U.S. to realize tax or other benefits. Notwithstanding the foregoing, clauses (b), (c) and (d) shall be discharged from all obligations and covenants under this Indenture and not apply to the Securities and may thereupon be dissolved and liquidatedRecapitalization.
Appears in 1 contract
Samples: Indenture (Homco Puerto Rico Inc)
Merger, Consolidation and Sale of Assets. Except as Merge or consolidate with any other Person or sell, lease or transfer or otherwise provided as contemplated by Section 3.01 with respect dispose of any material assets to any series Person other than (i) sales of Securities:
Accounts to Xxxxxxx Financial Services, Inc. or other finance Subsidiary that is a Loan Party, (ii) sales of Inventory in the ordinary course of business, or dispositions as permitted pursuant to SECTION 9.7, except that this SECTION 12.7 shall not apply to (a) The Company the merger of any Loan Party or Subsidiary into a Loan Party, PROVIDED that, Xxxxxxx shall not consolidate be the surviving corporation of any merger to which it is a party and a Loan Party shall be the surviving entity of any merger with or merge into any other Person in a transaction in which the Company Subsidiary that is not a Loan Party, (b) any transfer of assets to a Loan Party, (c) so long as no Event of Default exists at the surviving entitytime, or conveythe sale, lease, transfer or lease its properties and assets substantially as an entirety toother disposition by a Borrower of any Assets Held For Sale, any Person, unless
(i) any Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermuda, the British Virgin Islands, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iiid) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counselsale, each stating that such consolidation, merger, conveyancelease, transfer or lease and other disposition of any Equipment or Real Estate for at least the fair market value thereof at the time of such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entitysale, or any sale other than for cash, or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 conveyance, transfer or lease other disposition and for consideration at least 75% of which is made shall succeed topaid in cash at closing, (e) as to accounts receivable in an aggregate amount not exceeding $10,000,000 in any Fiscal Year, (1) the sale on a non-recourse basis as to all Loan Parties, of any account receivable that is not, immediately prior to such sale, an "Eligible Account" or (2) the sale, transfer or other disposition of any account receivable that is not, immediately prior to such sale, an "Eligible Account," pursuant to a factoring agreement on market terms for "no advance, no ledger debt" arrangements or otherwise on terms and conditions satisfactory to the Administrative Agent, and be substituted an agreement between the factor a party to such factoring agreement and the Administrative Agent, in form and substance satisfactory to the Administrative Agent in the exercise of its reasonable credit judgment, providing for, and may exercise every right and power ofamong other things, direct remittance by such factor to an account specified by the Company under this Indenture with the same effect as if Administrative Agent of amounts due from such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and factor from time to time time, subordination of any claim such entity factor may exercise each otherwise have against the applicable Loan 112 Party arising out of obligations of such Loan Party to other customers of such factor ("ledger debt"), and every right and power the agreement of the Company under this Indenture, in the name of the Companysuch factor to make no loans or advances to such Loan Party, or (f) transfers of assets in its own name; and connection with any act or proceeding by any provision of this Indenture required or Investment 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
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 shall will not consolidate with any other entity or merge accept a merger of any other entity into the Company or permit the Company to be merged into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer sell other than for cash or lease all or substantially all its properties and assets to another entity, or purchase all or substantially as an entirety toall the assets of another entity, any Person, unless
unless (i) any Person formed either the Company shall be the continuing entity, or the successor, transferee or lessee entity (if other than the Company) shall expressly assume, by indenture supplemental hereto satisfactory to the Trustee, executed and delivered by such consolidation entity prior to or into simultaneously with such consolidation, merger, sale or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudalease, the British Virgin Islandsdue and punctual payment of the principal of and interest and premium, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture if any, on all the Securities (and Coupons, if any), according to their tenor, and the due and punctual performance and observance of all other obligations of to the Company holders and the Trustee under this Indenture or under the Securities (and Coupons, if any) to be performed or observed by the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
Company; and (ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyancesale, transfer lease or lease and purchase the Company or the successor, transferee or lessee entity (if other than the Company) would not be in Default in the performance of any covenant or condition of this Indenture. A purchase by a Subsidiary of all or substantially all of the assets of another entity shall not be deemed to be a purchase of such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied withassets by the Company.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, lease of all or substantially all of the assets of the Company in accordance with this Section 6.04605, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidatedCoupons.
Appears in 1 contract
Samples: Indenture (Citigroup Inc)
Merger, Consolidation and Sale of Assets. Except The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person, and the Company will not sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries taken as otherwise provided as contemplated by Section 3.01 with respect a whole, to any series of SecuritiesPerson unless:
(1) either:
(a) The the Company shall not consolidate with or merge into any other Person in a transaction in which the Company is not be the surviving or continuing entity, or convey, transfer or lease its properties and assets substantially as an entirety to, any Person, unless; or
(ib) any the Person (if other than the Company) formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyedPerson which acquires by sale, transferred assignment, transfer, lease, conveyance or leased its other disposition the properties and assets substantially of the Company and its Restricted Subsidiaries taken as an entirety is a corporation, partnership, trust or other entity whole (the “Surviving Entity”):
(i) shall be a Person organized and validly existing under the laws of Bermudathe United States or any State thereof or the District of Columbia; provided that in the case where the Surviving Entity is not a corporation, the British Virgin Islands, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations a co-obligor of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it Notes is organized or resident for tax purposesa corporation;
(ii) shall expressly assume, by a joinder to the Note Purchase Agreement, executed and delivered to the Collateral Agent, 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, the Note Purchase Agreement and the Security Documents on the part of the Company to be performed or observed; and
(iii) shall take all actions necessary to cause the Liens created by the Security Documents to continue to be duly perfected to the extent required by such agreement in accordance with all applicable law, including making all filings under the Uniform Commercial Code or otherwise that are required by applicable law in order for the Collateral Agent to continue at all times following such transaction to have a valid, legal and perfected security interest in all the Collateral with the priority required by the Junior Priority Intercreditor Agreement;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(b)(ii) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), (x) the Total LTV Ratio of the Company and its Restricted Subsidiaries on a pro forma basis would be either (i) no higher than 0.45 to 1.0 or (ii) no higher than 90.0% of the Total LTV Ratio immediately prior to such transaction and (y) the ratio of Corporate Indebtedness of the Company and its Restricted Subsidiaries to Tangible Net Worth of the Company and its Subsidiaries on a pro forma basis would be either (i) no higher than 1.25 to 1.0 or (ii) no higher than 90.0% of the ratio of Corporate Indebtedness of the Company and its Restricted Subsidiaries to Tangible Net Worth of the Company and its 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 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, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and or be continuing; and
(iii4) the Company has or the Surviving Entity shall have delivered to the Trustee Collateral Agent an Officersofficers’ Certificate certificate and an Opinion opinion of Counselcounsel, each stating that such consolidation, merger, conveyancesale, transfer assignment, transfer, lease, conveyance or lease and other disposition and, if a joinder to the Note Purchase Agreement is required in connection with such supplemental indenture comply transaction, such joinder complies with this Indenture the applicable provisions of the Note Purchase Agreement and that all conditions precedent therein provided for in the Note Purchase Agreement relating to such transaction have been complied with.
satisfied and that the joinder and such other agreements constitute the legal, valid and binding obligation of the Surviving Entity. For purposes of the foregoing, the transfer (b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or 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 and its Restricted Subsidiaries, taken as a whole, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries, taken as a whole. The Note Purchase Agreement provides that upon any consolidation, combination or merger by the Company or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries taken as a whole in accordance with this Section 6.04the foregoing, in which the Company is not the continuing entity, the successor entity Person formed by such consolidation or into or with which the Company is merged or to which the Company is sold or to which such conveyance, lease or 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 the Note Purchase Agreement and the Notes with the same effect as if such successor surviving entity had been named as the Company herein, and thereafter, except in the case of such. This Section 7 will not apply to:
(1) a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power merger of the Company under this Indenture, with an Affiliate solely for the purpose of reorganizing the Company in the name of the Company, another jurisdiction;
(2) any consolidation or in its own name; and any act or proceeding merger by any provision of this 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 and effect by the like board of directors or officer of into, or any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or sale, assignment, transfer, conveyance, but not lease or other disposition of assets by any such leaseRestricted Subsidiary to, the Company or any of its Restricted Subsidiaries; or
(3) any Required Asset Sale that complies with Section 1 of this Annex. Any reference in the Note Purchase Agreement to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of, or by, a limited liability company, limited partnership or trust, or an allocation of assets to a series of a limited liability company, limited partnership or trust (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company, limited partnership or trust shall constitute a separate Person under the Note Purchase Agreement (and each division of any successor entity which limited liability company, limited partnership or trust that is a Subsidiary, Unrestricted Subsidiary, joint venture or any other like term shall theretofore have become also constitute such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.a Person or entity)
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Ocwen Financial Corp)
Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01 with respect None of the Issuers or Guarantors shall be a party to any series of Securitiesa Substantially All Merger or participate in a Substantially All Sale, unless:
(a) The Company such Issuer or Guarantor shall not consolidate with or merge into any other Person in a transaction in which the Company is not be the surviving entity, or convey, transfer continuing entity or lease its properties and assets substantially as the Person (if other than an entirety to, any Person, unless
(iIssuer) any Person formed by or surviving such consolidation or into or with which the Company is merged Substantially All Merger or to whom which such Substantially All Sale has been made (the Company has conveyed“Surviving Entity”) and shall expressly assume, transferred or leased its properties by a supplemental agreement executed and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under delivered to the laws of BermudaNote Holders, the British Virgin Islands, Cayman Islands or Hong Kong due and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations punctual payment of the Company under this Indenture principal of and interest on all of the Notes and the Securities, including performance of every covenant of the obligation Notes and this Agreement on the part of such Issuer or Guarantor to pay Additional Amounts with respect to any jurisdiction in which it is organized be performed or resident for tax purposesobserved;
(iib) immediately after giving effect to the such transaction, no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have Default has occurred and be is continuing;
(c) such Issuer has complied with its obligations pursuant to Section 4.2 with respect to a Change of Control; and
(iiid) such Issuer, Guarantor or the Company has delivered to Surviving Entity, as the Trustee case may be, shall have made available for inspection by each Note Holder an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidationtransaction and, mergerif a supplemental agreement is required in connection with such transaction, conveyance, transfer or lease and such supplemental indenture comply agreement, complies with the applicable provisions of this Indenture Agreement and that all conditions precedent therein provided for in this Agreement relating to such transaction have been complied withsatisfied; provided, however, that such counsel may address such Opinion of Counsel to such Issuer, Guarantor or the Surviving Entity and rely, as to matters of fact, on a certificate or certificates of officers thereof.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 1 contract
Samples: Note and Unit Subscription Agreement (Carlyle Group L.P.)
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 shall will not consolidate with any other entity or merge accept a merger of any other entity into the Company or permit the Company to be merged into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer sell other than for cash or lease all or substantially all its properties and assets to another entity, or purchase all or substantially as an entirety toall the assets of another entity, any Person, unless
unless (i) any Person formed by such consolidation or into or with which either the Company is merged shall be the continuing entity, or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermuda, the British Virgin Islands, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect the successor, transferee or lessee entity (if other than the Company) shall expressly assume, by indenture supplemental hereto, executed and delivered by such entity prior to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that simultaneously with such consolidation, merger, conveyancesale or lease, transfer or lease the due and such supplemental indenture comply with punctual payment of the principal of and interest and premium, if any, on all the Securities, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under this Indenture and that or under the Securities to be performed or observed by the Company. A purchase by a Subsidiary of all conditions precedent therein provided for relating or substantially all of the assets of another entity shall not be deemed to be a purchase of such transaction have been complied withassets by the Company.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, lease of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
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 shall not consolidate with, merge with or merge into any other Person in a transaction in which the Company is not the surviving entityinto, or sell, convey, transfer transfer, lease or lease otherwise dispose of all or substantially all of its properties property and assets substantially as an entirety (in one transaction or a series of related transactions) to, any PersonPerson (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 Person to merge with or into the Company unless:
(i) any either (A) the Company shall be the continuing Person or (B) the Person formed by such consolidation or into or with which the Company is merged or to whom that acquired or leased such property and assets of the Company has conveyed, transferred or leased its properties shall be a corporation organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudathe United States of America or any jurisdiction thereof (or, any entity not organized under such laws which agrees (I) to subject itself to the British Virgin Islandsjurisdiction of the United States district court for the Southern District of New York, Cayman Islands and (II) to indemnify and hold harmless the Holders of all Notes against (y) any tax, assessment or Hong Kong 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 making of, any payment of principal of or interest on such Person Notes and which would not have been so imposed and withheld had such consolidation, merger, sale or conveyance not been made and (z) 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 assumes assume, by an indenture a supplemental indenture, executed and delivered to this Indenture the Trustee, all of the obligations of the Company under this the Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposesNotes;
(ii) immediately after giving effect to the such transaction, no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default under the Indenture shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease Counsel as to the matters set forth in the preceding clauses (i) and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction (ii) shall have been complied withdelivered to the Trustee.
(b) 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 into a single direct or indirect wholly-owned Subsidiary pursuant to Section 905 (or any successor provision) of the Business Corporation Law of the State of New York.
(c) Upon any consolidation with or merger into any other entitymerger, or any sale sale, conveyance, transfer, lease or other than for cash, or any conveyance or lease, disposition of all or substantially all of the property and assets of the Company in accordance with this Section 6.045.4, the if there is a successor, such 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 conveyance, transfer or lease is made shall succeed to, and be substituted for, for the Company and may exercise every right and power of, under the Company under this Indenture with the same effect as if such successor entity had been named as in place of the Company hereinin the Indenture, and thereafter, the Company shall (except in the case of a lease, the predecessor Company shall be relieved lease of all obligations or substantially all of property and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name assets of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this the Indenture and the Securities and may thereupon be dissolved and liquidatedNotes.
Appears in 1 contract
Samples: Fourth Supplemental Indenture (Arrow Electronics, 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 shall may not consolidate with or merge into any other Person in a transaction in which or sell, lease, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company is not the surviving entityand its Subsidiaries, taken as a whole, in one or conveymore related transactions, transfer or lease its properties and assets substantially as an entirety to, to any Person, unlessunless (1) the Company receives the consent of Holders of at least majority in aggregate principal amount of the Outstanding Notes or (2) the following conditions are satisfied:
(i) the Company obtains any and all regulatory approvals in connection therewith, as applicable;
(ii) the Person formed by or surviving any such consolidation or into merger or with the Person to which the Company is merged or to whom the Company has conveyedsuch sale, transferred or leased its properties and assets substantially as an entirety is a corporationlease, partnershipassignment, trust transfer, conveyance or other entity validly disposition has been made (if other than the Company), shall be a Person organized and existing under the laws of Bermuda(A) Panama, (B) Peru, (C) the United States of America or any state thereof, or (D) any country member of the Organization for Economic Co-operation and Development or the G-20 and any state thereof (to the extent applicable) and (x) shall expressly assume by a supplemental indenture to this Indenture, delivered to and in a form satisfactory to the Trustee, the British Virgin Islandsdue and punctual payment of the principal of, Cayman Islands or Hong Kong premium, if any and such Person expressly assumes by an indenture supplemental to this Indenture interest on all the obligations Outstanding Notes and the performance of all of the Company Company’s Obligations under this Indenture and the Securities, including Notes and (y) shall agree to modify the obligation provisions described under Section 3.10 and that Taxing Jurisdiction will be defined to pay Additional Amounts with respect to include any jurisdiction in which it such Person is organized or resident for tax purposes;
(iiiii) immediately after giving effect to such transaction (and treating any Debt that becomes an obligation of the Surviving Entity (as defined below) or any Subsidiary of the Surviving Entity as a result of such transaction as having been incurred by (x) the Company, (y) the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, lease, assignment, transfer, conveyance or other disposition has been made (the Company or such Person, as the case may be, the “Surviving Entity”) or (z) such Subsidiary at the time of such transaction), no Default under this Indenture or the Notes, and no Event of Default, and no event which, after notice Default under this Indenture or lapse of time or both, would become an Event of Defaultthe Notes, shall have occurred happened and be continuing; and
(iiiiv) the Company has shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyanceconveyance or transfer, transfer or lease if applicable, and such supplemental indenture (if required) comply with this Indenture and that all conditions precedent therein provided for the foregoing provisions relating to such transaction and all conditions precedent in this Indenture relating to such transaction and the execution of such supplemental indenture (if required) have been complied with.
(b) Upon This Section 4.1 shall not apply to any consolidation with or merger into any other entitymerger, or any sale sale, assignment, transfer, conveyance, lease or other than for cashdisposition of assets from a Subsidiary to the Company.
(c) For purposes of this Section 4.1, or any conveyance or the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company in accordance with this Section 6.04on a consolidated basis, shall be deemed to be the successor entity formed by such consolidation transfer of all or into or with which substantially all of the Company is merged or properties and assets of the Company.
(d) The Surviving Entity will succeed to which the Company 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, for the Company as obligor on the Notes and under this Indenture with the same effect as if such successor entity it had been named as the Company herein, and thereafter, except obligor in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and issued the Securities, and from time to time such entity may exercise each and every right and power Notes. Upon the assumption of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding obligations by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any Surviving Entity in such leasecircumstances, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall will be discharged from all obligations Obligations under the Notes and covenants under this Indenture Indenture.
(e) For purposes of this Section 4.1, the Trustee will be entitled to rely exclusively on and will accept the Securities Officers’ Certificate and may thereupon Opinion of Counsel delivered pursuant to Section 4.1(a)(iv) as sufficient evidence of the satisfaction of the conditions precedent set forth in this covenant, in which event it will be dissolved conclusive and liquidatedbinding on the Holders.
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 shall 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 in a transaction in which the Company is not the surviving entity, or sell, convey, transfer or lease all or substantially all its properties and assets substantially as an entirety toto another entity, any Person, unless
unless (i) any Person formed by such consolidation or into or with which either the Company is merged shall be the continuing entity, or to whom the Company has conveyedsuccessor, transferred transferee or leased its properties lessee entity (if other than the Company) shall be organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudathe United States or any State thereof or the District of Columbia and expressly assume, by indenture supplemental hereto, executed and delivered by such entity prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the British Virgin Islandsdue and punctual payment of the principal of and interest and premium, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture if any, on all the Securities, according to their tenor, and the due and punctual performance and observance of all other obligations of to the Company Holders and the Trustee under this Indenture or under the Securities to be performed or observed by the Company; and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, conveyance, transfer or lease the Company or the successor, transferee or lessee entity (if other than the Company) would not be in Default in the performance of any covenant or condition of this Indenture. The Company, or successor, transferee or lessee shall deliver to the Trustee upon the consummation of the proposed transaction an Officer’s Certificate and such supplemental indenture comply an Opinion of Counsel pursuant to Section 16.01 and stating that the proposed transaction complies with this Indenture and stating, if applicable, that all conditions precedent therein provided for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of all or substantially all of the assets of the Company in accordance supplemental indenture complies with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 1 contract
Samples: Indenture (Vectrus, 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 shall not consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to, any Person, unless
(i) any Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermuda, the British Virgin Islands, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion opinion of External Legal Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 1 contract
Samples: Indenture (iQIYI, 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 For so long as the Notes are outstanding, the Company shall may not consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entity, corporation or convey, convey or transfer or lease its properties and assets substantially as an entirety to, to any Person, unless
unless (i) any the successor Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties shall be a corporation organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudathe United States (or any State thereof or the District of Columbia) and shall expressly assume, by a supplemental indenture, the British Virgin Islands, Cayman Islands or Hong Kong due and such Person expressly assumes by an indenture supplemental to this Indenture punctual payment of the principal of and interest on all the obligations outstanding Notes of such series and the performance of every covenant in this Sixth Supplemental Indenture on the part of the Company under this Indenture and the Securitiesto be performed or observed, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
and (iii) the Company has shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each Counsel stating that all conditions precedent set forth in the indenture relating to the consummation of such consolidation, merger, conveyance, conveyance or transfer or lease and entering into of such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
met. In case of any such consolidation, merger conveyance or transfer (b) Upon any consolidation with or merger into any other entity, or any sale other than for casha lease), or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the such successor entity formed by such consolidation or into or with which the Company is merged or corporation will succeed to which the Company 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, for the Company under this Indenture as obligor on the Notes of the applicable series, with the same effect as if such successor entity it had been named in this Sixth Supplemental Indenture as the Company herein, and thereafter, except in the case such obligor.
(b) For purposes of a leasethis Section 2.12, the predecessor Company shall be relieved conveyance or transfer of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power property of one or more Subsidiaries of the Company under this Indenturewhich property, in if held by the name Company instead of such Subsidiaries, would constitute all or substantially all the property of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all the property of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
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 shall not Except as provided in paragraph (b) of this Section, the Trust may merge or consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to, any Person, unless
(i) any Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnershipassociation, trust or other entity validly existing under the laws of Bermudaorganization or may sell, the British Virgin Islands, Cayman Islands lease or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of exchange all or substantially all of the assets Trust Property or the property, including its good will, upon such terms and conditions and for such consideration when and as authorized by two-thirds of the Company in accordance with Trustees, followed by approval by a Majority Shareholder Vote, and any such merger, consolidation, sale, lease or exchange shall be determined for all purposes to have been accomplished under and pursuant to the statutes of the State of Delaware.
(b) Notwithstanding paragraph (a) of this Section 6.04Section, if such action has been approved by eighty percent (80%) of the Trustees, the successor entity formed by such consolidation Trust may merge or into consolidate with, or with which may sell, lease or exchange all or substantially all of the Company is merged Trust Property or to which the Company is sold or to which such conveyanceproperty, transfer or lease is made shall succeed including its good will, to, any other corporation, association, trust or other organization that is, or will be immediately after giving effect to such transaction, registered as an investment company under the 1940 Act (or a series thereof) and:
(i) no Fundamental Policy of the Trust is materially different from a Fundamental Policy of such registered investment company;
(ii) no advisory agreement between the Trust and be substituted for, any investment adviser thereof is materially different from an advisory contract between such registered investment company and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor entity had been named as the Company herein, and thereafterany investment adviser thereof, except for the identity of the investment companies as a party to the contract;
(iii) Trustees of the Trust who are not “interested persons” (as defined in the case 1940 Act) of the Trust and who were elected by Shareholders will comprise a majority of the trustees or directors (or members of a lease, the predecessor Company shall be relieved similar governing body) of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, registered investment company who are not “interested persons” (as defined in the name 1940 Act) of the Company, or such registered investment company; and
(iv) such registered investment company has provisions in its own name; governing documents substantially equivalent to Sections 10.4, 10.6, 11.1, 11.2, 11.3, 11.4, 11.5 and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated11.6.
Appears in 1 contract
Samples: Agreement and Declaration of Trust (Octagon XAI CLO Income Fund)
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 For so long as the Notes are outstanding, the Company shall may not consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entity, corporation or convey, convey or transfer or lease its properties and assets substantially as an entirety to, to any Person, unless
unless (i) any the successor Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties shall be a corporation organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudathe United States (or any State thereof or the District of Columbia) and shall expressly assume, by a supplemental indenture, the British Virgin Islands, Cayman Islands or Hong Kong due and such Person expressly assumes by an indenture supplemental to this Indenture punctual payment of the principal of and interest on all the obligations outstanding Notes of such series and the performance of every covenant in this First Supplemental Indenture on the part of the Company under this Indenture and the Securitiesto be performed or observed, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
and (iii) the Company has shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each Counsel stating that all conditions precedent set forth in the indenture relating to the consummation of such consolidation, merger, conveyance, conveyance or transfer or lease and entering into of such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
met. In case of any such consolidation, merger conveyance or transfer (b) Upon any consolidation with or merger into any other entity, or any sale other than for casha lease), or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the such successor entity formed by such consolidation or into or with which the Company is merged or corporation will succeed to which the Company 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, for the Company under this Indenture as obligor on the Notes of the applicable series, with the same effect as if such successor entity it had been named in this First Supplemental Indenture as the Company herein, and thereafter, except in the case such obligor.
(b) For purposes of a leasethis Section 2.12, the predecessor Company shall be relieved conveyance or transfer of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power property of one or more Subsidiaries of the Company under this Indenturewhich property, in if held by the name Company instead of such Subsidiaries, would constitute all or substantially all the property of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all the property of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 1 contract
Samples: First Supplemental Indenture (Southern Copper Corp/)
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 shall not not, in a single transaction or a series of related transactions, consolidate with or merge with or into any other Person in a transaction in which Person, or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company is not to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the surviving entity, Company's assets (determined on a consolidated basis for the Company and its Restricted Subsidiaries) to any Person whether as an entirety or convey, transfer or lease its properties and assets substantially as an entirety to, any Person, unless
: (i1) any 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 or with which the Company is merged or to whom the Company has conveyedPerson which acquires by sale, transferred assignment, transfer, lease, conveyance or leased its other disposition the properties and assets of the Company and its Restricted Subsidiaries substantially as an entirety is (the "Surviving Entity") (x) shall be a corporation, partnership, trust or other entity corporation organized and validly existing under the laws of Bermudathe United States or any State thereof or the District of Columbia and (y) shall expressly assume, the British Virgin Islands, Cayman Islands or Hong Kong by supplemental indenture (in form and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect substance reasonably satisfactory to the transactionTrustee), no Event of Default, executed and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate Trustee, the due and an Opinion punctual payment of Counselthe principal of and premium, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.if
(b) Upon any consolidation with or merger into any other entityFor purposes of the foregoing, or any sale other than for cash, or any conveyance or the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties and assets of the Company in accordance with this Section 6.04, the successor entity formed by such consolidation one or into or with which the Company is merged or to which the Company 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 under this Indenture with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or in its own name; substantially all of the properties and any act or proceeding by any provision assets of this Indenture required or permitted the Company, shall be deemed to be done by the Board transfer of Directors all or any officer substantially all of the properties and assets of the Company.
(c) Notwithstanding the foregoing, (i) the merger of the Company may be done with like force and effect by into Xxxxxxx & Xxxxxx Floorcoverings, Inc. on the like board of directors or officer of any entity that shall at Issue Date and (ii) the time be the successor merger of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.with an
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 For so long as the Notes are outstanding, the Company shall may not consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entity, corporation or convey, convey or transfer or lease its properties and assets substantially as an entirety to, to any Person, unless
unless (i) any the successor Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties shall be a corporation organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudathe United States (or any State thereof or the District of Columbia) and shall expressly assume, by a supplemental indenture, the British Virgin Islands, Cayman Islands or Hong Kong due and such Person expressly assumes by an indenture supplemental to this Indenture punctual payment of the principal of and interest on all the obligations outstanding Notes of such series and the performance of every covenant in this Third Supplemental Indenture on the part of the Company under this Indenture and the Securitiesto be performed or observed, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
, and (iii) the Company has shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each Counsel stating that all conditions precedent set forth in the indenture relating to the consummation of such consolidation, merger, conveyance, conveyance or transfer or lease and entering into of such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
met. In case of any such consolidation, merger conveyance or transfer (b) Upon any consolidation with or merger into any other entity, or any sale other than for casha lease), or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the such successor entity formed by such consolidation or into or with which the Company is merged or corporation will succeed to which the Company 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, for the Company under this Indenture as obligor on the Notes of the applicable series, with the same effect as if such successor entity it had been named in this Third Supplemental Indenture as the Company herein, and thereafter, except in the case such obligor.
(b) For purposes of a leasethis Section 2.12, the predecessor Company shall be relieved conveyance or transfer of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power property of one or more Subsidiaries of the Company under this Indenturewhich property, in if held by the name Company instead of such Subsidiaries, would constitute all or substantially all the property of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all the property of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 1 contract
Samples: Third Supplemental Indenture (Southern Copper Corp/)
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 For so long as the Notes are outstanding, the Company shall may not consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entity, corporation or convey, convey or transfer or lease its properties and assets substantially as an entirety to, to any Person, unless
unless (i) any the successor Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties shall be a corporation organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudathe United States (or any State thereof or the District of Columbia) and shall expressly assume, by a supplemental indenture, the British Virgin Islands, Cayman Islands or Hong Kong due and such Person expressly assumes by an indenture supplemental to this Indenture punctual payment of the principal of and interest on all the obligations outstanding Notes of such series and the performance of every covenant in this Fifth Supplemental Indenture on the part of the Company under this Indenture and the Securitiesto be performed or observed, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
, and (iii) the Company has shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each Counsel stating that all conditions precedent set forth in the indenture relating to the consummation of such consolidation, merger, conveyance, conveyance or transfer or lease and entering into of such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
met. In case of any such consolidation, merger conveyance or transfer (b) Upon any consolidation with or merger into any other entity, or any sale other than for casha lease), or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the such successor entity formed by such consolidation or into or with which the Company is merged or corporation will succeed to which the Company 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, for the Company under this Indenture as obligor on the Notes of the applicable series, with the same effect as if such successor entity it had been named in this Fifth Supplemental Indenture as the Company herein, and thereafter, except in the case such obligor.
(b) For purposes of a leasethis Section 2.12, the predecessor Company shall be relieved conveyance or transfer of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power property of one or more Subsidiaries of the Company under this Indenturewhich property, in if held by the name Company instead of such Subsidiaries, would constitute all or substantially all the property of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all the property of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 1 contract
Samples: Fifth Supplemental Indenture (Southern Copper Corp/)
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 For so long as the Notes are outstanding, the Company shall may not consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entity, corporation or convey, convey or transfer or lease its properties and assets substantially as an entirety to, to any Person, unless
unless (i) any the successor Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties shall be a corporation organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudathe United States (or any State thereof or the District of Columbia) and shall expressly assume, by a supplemental indenture, the British Virgin Islands, Cayman Islands or Hong Kong due and such Person expressly assumes by an indenture supplemental to this Indenture punctual payment of the principal of and interest on all the obligations outstanding Notes of such series and the performance of every covenant in this Second Supplemental Indenture on the part of the Company under this Indenture and the Securitiesto be performed or observed, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
and (iii) the Company has shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each Counsel stating that all conditions precedent set forth in the indenture relating to the consummation of such consolidation, merger, conveyance, conveyance or transfer or lease and entering into of such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
met. In case of any such consolidation, merger conveyance or transfer (b) Upon any consolidation with or merger into any other entity, or any sale other than for casha lease), or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the such successor entity formed by such consolidation or into or with which the Company is merged or corporation will succeed to which the Company 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, for the Company under this Indenture as obligor on the Notes of the applicable series, with the same effect as if such successor entity it had been named in this Second Supplemental Indenture as the Company herein, and thereafter, except in the case such obligor.
(b) For purposes of a leasethis Section 2.12, the predecessor Company shall be relieved conveyance or transfer of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power property of one or more Subsidiaries of the Company under this Indenturewhich property, in if held by the name Company instead of such Subsidiaries, would constitute all or substantially all the property of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all the property of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 1 contract
Samples: Second Supplemental Indenture (Southern Copper Corp/)
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 shall will not consolidate with any other entity or merge accept a merger of any other entity into the Company or permit the Company to be merged into any other Person in a transaction in which the Company is not the surviving entity, or sell, convey, transfer or lease all or substantially all its properties and assets substantially as an entirety toto another entity, any Person, unless
unless (i) any Person formed either the Company shall be the continuing entity, or the successor, transferee or lessee entity (if other than the Company) shall expressly assume, by indenture supplemental hereto, executed and delivered by such consolidation entity prior to or into simultaneously with such consolidation, merger, sale or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudalease, the British Virgin Islandsdue and punctual payment of the principal of and interest and premium, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture if any, on all the Securities, according to their tenor, and the due and punctual performance and observance of all other obligations of to the Company Holders and the Trustee under this Indenture or under the Securities to be performed or observed by the Company; and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyancesale, transfer lease or lease and such supplemental indenture comply with purchase the Company or the successor, transferee or lessee entity (if other than the Company) would not be in Default in the performance of any covenant or condition of this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied withIndenture.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cashsale, or any conveyance or lease, lease of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 1 contract
Samples: Indenture (Aircastle LTD)
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 shall not in a single transaction or through a series of related transactions consolidate with or merge with or into any other Person in a transaction in which Person, or transfer (by lease, assignment, sale or otherwise) all or substantially all of its Properties and assets unless:
(1) either the Company is not shall be the surviving entitycontinuing Person, or convey, transfer or lease its properties and assets substantially as an entirety to, any Person, unless
the Person (iif other than the Company) any Person formed by such consolidation or into or with which the Company is merged or to whom which all or substantially all of the Company has conveyed, transferred or leased its properties and assets substantially of the Company are transferred (the Company or such other Person being hereinafter referred to as an entirety is the "Surviving Person") shall be a corporation, partnership, trust or other entity corporation organized and validly ---------------- existing under the laws of Bermudathe United States, any State thereof or the British Virgin IslandsDistrict of Columbia, Cayman Islands or Hong Kong and such Person shall expressly assumes assume, by an indenture supplemental hereto, executed and delivered to this Indenture the Trustee, in form satisfactory to the Trustee, all of the obligations Obligations of the Company under the Notes and this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposesIndenture.
(2) [Intentionally Omitted];
(ii3) immediately before or immediately after and giving effect to the transaction, such transaction no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and or be continuing; and
(iii4) the Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease adoption and such supplemental indenture comply with this Indenture Article Five, that the Surviving Person agrees to be bound hereby, and that all conditions precedent therein herein provided for (which, in the case of the Opinion of Counsel, may be limited to the condition specified in clause (1) of this Section 5.01(a)) relating to such transaction have been complied withsatisfied.
(b) Upon any consolidation with or merger into any other entityFor purposes of the foregoing, or any sale other than for cash, or any conveyance or the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the Properties and assets of one or more Subsidiaries the Capital Stock of which constitutes all or substantially all of the Properties and assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved deemed to be the transfer of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power or substantially all of the Company under this Indenture, in the name properties and assets of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company .
(or any successor entity which shall theretofore have become such in the manner described in this Section 6.04c) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated[Intentionally Omitted]."
Appears in 1 contract
Samples: First Supplemental Indenture (Howmet International 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 Except in the case of a Peru Sale conducted pursuant to Section 6.3 and transfers to Specified Affiliate Holding Companies as part of the Permitted Reorganization, the Company shall not will not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person in a transaction in which (whether or not the Company is not the surviving entityor continuing Person), or conveysell, transfer assign, transfer, lease, convey or lease its otherwise dispose of all or substantially all of the Company’s properties and assets substantially as an entirety to(determined on a consolidated basis for the Company and its subsidiaries), to any Person, Person unless: (a) either:
(i) any the Company shall be the surviving or continuing corporation; or
(ii) the Person (if other than the Company ) formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyedPerson which acquires by sale, transferred assignment, transfer, lease, conveyance or leased its other disposition the properties and assets of the Company and of the Company’s subsidiaries substantially as an entirety is a corporation, partnership, trust or other entity (the “Surviving Entity”):
(A) shall be organized and validly existing under the laws of (a) Bermuda, (b) the British Virgin Cayman Islands, Cayman Islands (c) the United States of America, any State thereof or Hong Kong the District of Columbia, (d) Peru or (e) any country which is a member country of the Organization for Economic Co-Operation and such Person Development; and
(B) shall expressly assumes assume, by an indenture supplemental agreement (in form and substance reasonably satisfactory to the Payor), executed and delivered to the Payor, the due and punctual payment of the principal of, and premium, if any, and interest on all of the Deferred Amount and the performance and observance of every covenant of this Indenture all Agreement on the obligations part of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized be performed or resident for tax purposesobserved;
(iib) immediately after giving effect to such transaction and the assumption contemplated by clause (a)(ii)(B) above (including giving effect on a pro forma basis to any 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, will be able to incur at least U.S.$1.00 of additional Indebtedness pursuant to Section 2.6 of this Annex I;
(c) immediately after giving effect to such transaction and the assumption contemplated by clause (a)(ii)(B) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, incurred or anticipated to be Incurred and any Security Interest granted in connection with or in respect of the transaction), no Repayment Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and or be continuing; and
(iiid) the Company or the Surviving Entity has delivered to the Trustee Payor an Officers’ Certificate and an Opinion of Counsel, each stating that such the consolidation, merger, conveyancesale, transfer assignment, transfer, lease, conveyance or lease and other disposition and, if required in connection with such transaction, the supplemental indenture indenture, comply with the applicable provisions of this Indenture and that all conditions precedent therein provided for in this Indenture relating to such the transaction have been complied withsatisfied.
(be) Upon any consolidation with consolidation, combination or merger into any other entity, or any sale other than for cash, or any conveyance or lease, transfer of all or substantially all of the properties and assets of the Company Payee Group in accordance with this Section 6.042.8 (Merger, Consolidation and Sale of Assets) hereof, in which the Company is not the continuing Person, the successor entity Surviving 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 conveyance, lease or transfer or lease is made shall will succeed to, and be substituted for, (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Agreement referring to the “Company” shall refer instead to the Surviving Entity and not to the Company), and may exercise every right and power of, the Company under this Indenture Agreement with the same effect as if such successor entity Surviving Entity had been named as such. Upon such substitution, unless the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name successor is one or more of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease’s Subsidiaries, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall will be discharged released from all its obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidatedAgreement.
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 shall 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 in a transaction in which the Company is not the surviving entityPerson, or conveylease, sell or transfer all or lease substantially all of its properties property and assets substantially as an entirety to, any Person, unless:
(i1) any the Person formed by such consolidation or into or with which the Company Issuer or Holdings, as the case may be, is merged merged, or to whom the Company has conveyedPerson which acquires by lease, transferred sale or leased its properties transfer all or substantially all of the property and assets substantially of the Issuer or Holdings or the Division Successor surviving any Division, as an entirety the case may be, is a corporation, partnership, trust or other entity validly corporation organized and existing under the laws of BermudaAustralia, Switzerland, any Member State of the European Union, the British Virgin IslandsUnited Kingdom or, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations any state of the Company United States or the District of Columbia;
(2) (x) the Person formed by such consolidation or into which the Issuer or Holdings, as the case may be, is 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 pay the principal of, and any premium and interest on, the Notes, assume, perform and observe all obligations, covenants and conditions of the Issuer and Holdings, as the case may be, under this Indenture and the SecuritiesSecurity Documents by executing and delivering to the Trustee and the Collateral Agent a supplemental indenture and, including if applicable, joinders or supplements to the obligation Security Documents, and (ii) in the case of Holdings, to pay Additional Amounts with respect guarantee the Notes pursuant to any jurisdiction the terms of this Indenture or (y) in which it the case of a Division, where the Issuer or Holdings is organized the Dividing Person, the Division Successor shall remain or resident for tax purposes;become a co-issuer of the Notes; and
(ii3) immediately after giving effect to such transaction and treating indebtedness for borrowed money that becomes an obligation of the Issuer, Holdings or any of its Restricted Subsidiaries as a result of such transaction as having been incurred by the Issuer, Holdings or such Restricted Subsidiaries at the time of such transaction, no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
(b) Upon any consolidation In addition, notwithstanding the foregoing, the Issuer may (a) consolidate or merge with or merger into any other entityinto, or any sale other than for cashsell, lease or any conveyance or lease, of transfer all or substantially all of the its properties or assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of this Indenture required or permitted to be done by the Board of Directors Holdings or any officer of its Restricted Subsidiaries or (b) merge or consolidate with an affiliate incorporated solely for the Company may be done with like force and effect by purpose of reincorporating or reorganizing the like board of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such Issuer in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidatedanother jurisdiction.
Appears in 1 contract
Samples: Indenture (Tronox Holdings PLC)
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 shall will not consolidate with any other entity or merge accept a merger of any other entity into the Company or permit the Company to be merged into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer sell other than for cash or lease all or substantially all its properties and assets to another entity, or purchase all or substantially as an entirety toall the assets of another entity, any Person, unless
unless (i) any Person formed either the Company shall be the continuing entity, or the successor, transferee or lessee entity (if other than the Company) shall expressly assume, by indenture supplemental hereto, executed and delivered by such consolidation entity prior to or into simultaneously with such consolidation, merger, sale or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudalease, the British Virgin Islandsdue and punctual payment of the principal of and interest and premium, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture if any, on all the Securities, according to their tenor, and the due and punctual performance and observance of all other obligations of to the Company Holders and the Trustee under this Indenture and or under the Securities, including Securities to be performed or observed by the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
Company; (ii) immediately after giving effect to such consolidation, merger, sale, lease or purchase the transactionCompany or the successor, no Event transferee or lessee entity (if other than the Company) would not be in Default in the performance of Default, any covenant or condition of this Indenture; and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) either the Company has delivered or the resulting surviving or transferee Person delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such the consolidation, merger, conveyance, transfer merger or lease sale and such the supplemental indenture comply with this Indenture and that the Indenture. A purchase by a Subsidiary of all conditions precedent therein provided for relating or substantially all of the assets of another entity shall not be deemed to be a purchase of such transaction have been complied withassets by the Company.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, lease of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.. Table of Contents
Appears in 1 contract
Samples: Indenture (Healthsouth Corp)
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 shall not will not, in a single transaction or series of related transactions, consolidate or merge with or merge into any other Person in a transaction in which the Company is not the surviving entityPerson, or conveysell, transfer assign, transfer, lease, convey or lease its properties and otherwise dispose of all or substantially all of the Company's assets whether as an entirety or substantially as an entirety to, to any Person, Person unless
: (i) any the Person (if other than the Company or a Restricted Subsidiary of the Company) formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyedPerson which acquires by sale, transferred or leased its properties and assets substantially as an entirety is a corporationassignment, partnershiptransfer, trust lease, conveyance or other entity validly existing under disposition of all or substantially all of the laws of BermudaCompany's assets (the "Surviving Entity") shall expressly assume, by supplemental indenture (in form satisfactory to the Trustee), executed and delivered to the Trustee, the British Virgin Islands, Cayman Islands or Hong Kong due and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations punctual payment of the Company under principal of, and premium, if any, and interest on all of the Securities and the performance of every covenant of the Securities, this Indenture and the Securities, including Registration Rights Agreement on the obligation part of the Company to pay Additional Amounts with respect to any jurisdiction in which it is organized be performed or resident for tax purposes;
observed; and (ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice Company or lapse of time or both, would become an Event of Default, the Surviving Entity shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion opinion of Counselcounsel, each stating that such consolidation, merger, conveyancesale, transfer assignment, transfer, lease, conveyance or lease and 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 therein provided for in this Indenture relating to the execution of such transaction supplemental indenture have been complied with.
(b) satisfied. Upon any consolidation with consolidation, combination or merger into any other entity, or any sale other than for cash, or any conveyance or lease, transfer of all or substantially all of the assets of the Company in accordance with this Section 6.04the foregoing, in which the Company is not the continuing corporation, the successor entity Person formed by such consolidation or into or with which the Company is merged or to which the Company is sold or to which such conveyance, lease or 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 Securities with the same effect as if such successor surviving entity had been named as such and the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations of its Obligations and covenants duties under this Indenture 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 Indenture) will not, and from time the Company will not cause or permit any Guarantor (other than any Guarantor whose Guarantee is to time be released in accordance with the terms of the Guarantee and this Indenture) to, consolidate with or merge into any Person other than the Company or any other Guarantor unless: the entity formed by or surviving any such entity may exercise each 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 the Guarantee. Any merger or consolidation of a Guarantor with and every right and power into the Company (with the Company being the surviving entity) or another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of this 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated5.01.
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 shall Issuer will not consolidate with or merge with or into any other Person in a transaction in which the Company is or wind up into (whether or not the Issuer is the surviving entitycorporation), or convey, transfer or lease all or substantially all its properties and assets substantially as an entirety in one or more related transactions to, any Person, unless:
(i1) any the resulting, surviving or transferee Person formed by such consolidation or into or with which (the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is “Successor Issuer”) will be a corporation, partnership, trust or other entity validly limited liability company organized and existing under the laws of Bermudathe United States of America, any State of the British Virgin IslandsUnited States of America or the District of Columbia and the Successor Issuer (if not the Issuer) will expressly assume by supplemental indenture, Cayman Islands or Hong Kong executed and such Person expressly assumes by an indenture supplemental delivered to this Indenture the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company Issuer under this Indenture the Note Documents, and the SecuritiesSuccessor Issuer shall cause such amendments, including supplements or other instruments to be executed, filed and recorded in such jurisdiction as may be required by applicable law to preserve and protect the obligation Note Lien on the Collateral pledged by or transferred to pay Additional Amounts such Person, together with respect the financing statements and comparable documents as may be required to perfect any jurisdiction security interests in such Collateral, which it may be perfected by the filing of a financing statement or a similar document under the UCC or other similar statute or regulation of the relevant states or jurisdictions, in each case in a form reasonably satisfactory to the Trustee; provided, that if the Successor Issuer is organized or resident not a corporation, such Successor Issuer shall form a corporate co-issuer for tax purposesthe Notes, which shall assume all Note Obligations of the Issuer;
(ii2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any 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 Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing; and
(iii3) the Company has Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, winding up, conveyance, transfer or lease and such supplemental indenture (if any) comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied withIndenture.
(b) Upon any consolidation with or merger into any other entityFor purposes of this Section 5.1, or any sale other than for cashthe sale, or any conveyance or lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Issuer, which properties and assets, if held by the Issuer instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company in accordance with this Section 6.04Issuer on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.
(c) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to, the successor entity formed by such consolidation or Issuer and the Issuer may consolidate with, merge into or with which the Company is merged transfer all or to which the Company is sold or to which such conveyance, transfer or lease is made shall succeed part of its properties and assets to, and be substituted fora Wholly Owned Subsidiary, and the Issuer may exercise every right and power ofmerge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction; provided that, the Company under this Indenture with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a leaseRestricted Subsidiary that consolidates with, merges into or transfers all or part of its properties and assets to, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such leaseIssuer, the Company Issuer will not be required to comply with the preceding clause (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated3).
Appears in 1 contract
Samples: Indenture (GMX Resources Inc)
Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities:
The Company may not (a) The Company shall not merge with or into or consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entity(b) sell, assign, transfer, lease or convey, transfer convey all or lease substantially all of its properties and assets substantially as an entirety to, any PersonPerson other than, with respect to this clause (b), a Wholly Owned Subsidiary of the Company, unless
: (i) any the Company is the surviving corporation or the Person formed by or surviving such merger or consolidation or into to which such sale, assignment, transfer, lease or with which conveyance shall have been made (the Company is merged or to whom “Successor”), if other than the Company has conveyedCompany, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermuda, the British Virgin Islands, Cayman Islands or Hong Kong and such Person shall expressly assumes assume by an indenture supplemental hereto, executed and delivered to this Indenture the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture Indenture; and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing; and
, provided that the immediately-preceding clause (iiiii) shall not apply to (A) any merger of the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entityinto, or any sale other than for cashconsolidation of the Company with, any Wholly Owned Subsidiary of the Company or (B) any merger of the Company with or into, or any conveyance or lease, of all or substantially all of the assets consolidation of the Company with, an Affiliate of the Company solely for the purpose of the Company reincorporating or reorganizing in accordance with this Section 6.04, another jurisdiction. The Successor will be the successor entity formed by such consolidation or into or with which to the Company is merged or to which the Company is sold or to which such conveyance, transfer or lease is made shall succeed toCompany, and will be substituted for, for and may exercise every right and power of, and become the Company under this Indenture obligor on the Securities with the same effect as if such successor entity the Successor had been named as the Company herein, and thereafterbut, except in the case of a leaselease of all or substantially all of the properties and assets of the Company, the predecessor Company shall will not be relieved released from its obligations to pay the principal of all obligations and covenants under this Indenture interest and premium, if any, on the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 1 contract
Samples: Indenture (KEMPER Corp)
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 shall Issuer will not consolidate with or merge with or into any other Person in a transaction in which the Company is or wind up into (whether or not the Issuer is the surviving entitycorporation), or convey, transfer or lease all or substantially all its properties and assets substantially as an entirety in one or more related transactions to, any Person, unless:
(i1) any the resulting, surviving or transferee Person formed by such consolidation or into or with which (the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is “Successor Issuer”) will be a corporation, partnership, trust or other entity validly limited liability company organized and existing under the laws of Bermudathe United States of America, any State of the British Virgin IslandsUnited States or the District of Columbia and the Successor Issuer (if not the Issuer) will expressly assume, Cayman Islands or Hong Kong (i) by supplemental indenture, executed and such Person expressly assumes by an indenture supplemental delivered to this Indenture the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company Issuer under this Indenture the Note Documents and (ii) to the extent that the exchange offer (or filing of the registration statement) pursuant to the Registration Rights Agreement has not been consummated or filed, as applicable, by joinder, amendment, supplement or other instrument, executed and delivered to the Trustee, all obligations of the Issuer under the Registration Rights Agreement, and the SecuritiesSuccessor Issuer shall cause such amendments, including supplements or other instruments to be executed, filed and recorded in such jurisdiction as may be required by applicable law to preserve and protect the obligation Note Lien on the Collateral pledged by or transferred to pay Additional Amounts such Person, together with respect the financing statements and comparable documents as may be required to perfect any jurisdiction security interests in such Collateral which it may be perfected by the filing of a financing statement or a similar document under the UCC or other similar statute or regulation of the relevant states or jurisdictions, in each case in a form reasonably satisfactory to the Trustee; provided, that if the Successor Issuer is organized or resident not a corporation, such Successor Issuer shall form a corporate co-issuer for tax purposes;the Notes, which shall assume all Note Obligations of the Issuer.
(ii2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any 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 Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction, the Successor Issuer would be able to Incur at least an additional $1.00 of Indebtedness pursuant to the first paragraph of Section 4.12;
(4) each Guarantor (unless it is the other party to the transactions above, in which case clause (1) shall apply) shall have by supplemental indenture, joinders, amendments, supplements or other instruments relating to the Registration Rights Agreement, if applicable, confirmed that its Note Guarantee shall apply to such Person’s Note Obligations, and delivered such amendments, supplements or other instruments to be executed, filed and recorded in such jurisdiction as may be required by applicable law to preserve and protect the Note Lien on the Collateral pledged by or transferred to such Person, together with the financing statements and comparable documents as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or a similar document under the UCC or other similar statute or regulation of the relevant states or jurisdictions, in each case in a form reasonably satisfactory to the Trustee; and
(iii5) the Company has Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, merger or transfer or lease and such supplemental indenture (if any) comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied withIndenture.
(b) Upon any consolidation with or merger into any other entityFor purposes of this Section 5.1, the sale, lease, conveyance, assignment, transfer, or any sale other than for cash, or any conveyance or lease, disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Issuer, which properties and assets, if held by the Issuer instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company Issuer on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.
(c) Notwithstanding the preceding Section 5.1(a)(3), (x) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and the Issuer may consolidate with, merge into or transfer all or part of its properties and assets to a Wholly-Owned Subsidiary and (y) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in accordance with this Section 6.04another jurisdiction; provided that, in the case of a Restricted Subsidiary that consolidates with, merges into or transfers all or part of its properties and assets to the Issuer, the successor entity formed by such consolidation Issuer will not be required to comply with the preceding Section 5.1(a)(5).
(d) In addition, the Issuer will not permit any Guarantor to consolidate with or into merge with or with which into, and will not permit the Company is merged or to which the Company is sold or to which such conveyance, transfer or lease is made shall succeed of substantially all of the assets of any Guarantor to, any Person (other than the Issuer or another Guarantor) unless:
(1) (x) the resulting, surviving or transferee Person will be a corporation, partnership, trust or limited liability company organized and be substituted forexisting under the laws of the United States of America, any State of the United States or the District of Columbia and may exercise every right such Person (if not such Guarantor) will expressly assume, (i) by supplemental indenture, executed and power ofdelivered to the Trustee, all the Company Note Obligations of such Guarantor under this Indenture with its Note Guarantee and (ii) to the same effect extent that the exchange offer (or filing of the registration statement) pursuant to the Registration Rights Agreement has not been consummated or filed, as if such successor entity had been named as applicable, by joinder, amendment, supplement or other instrument delivered to the Company hereinTrustee, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations of such Guarantor under the Registration Rights Agreement; and covenants under this Indenture (y) immediately after giving effect to such transaction (and the Securities, and from time to time such entity may exercise each and every right and power treating any Indebtedness that becomes an obligation of the Company under this Indentureresulting, in the name of the Company, surviving or in its own name; and any act or proceeding by any provision of this Indenture required or permitted to be done by the Board of Directors transferee Person or any officer Restricted Subsidiary as a result of the Company may be done with like force and effect such transaction as having been Incurred by the like board of directors such Person or officer of any entity that shall such Restricted Subsidiary at the time of such transaction), no Default shall have occurred and be continuing; or
(2) the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such Guarantor’s Capital Stock is subject to an Asset Disposition transaction is made in the manner described in this compliance with Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.4.16
Appears in 1 contract
Samples: Indenture (GMX Resources 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 shall not consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entitywith or into, or convey, transfer or lease lease, in one transaction or a series of related transactions, all or substantially all its properties and assets substantially as an entirety to, any Person, unless:
(i) any the resulting, surviving or transferee Person formed by such consolidation or into or with which (the Company is merged or to whom the Company has conveyed, transferred or leased its properties "Successor Company") shall be a Person organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudathe United States of America, any State thereof or the British Virgin IslandsDistrict of Columbia and the Successor Company (if not the Company) will expressly assume, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental hereto, executed and delivered to this Indenture the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposesIndenture;
(ii) immediately after giving effect to such transaction on a pro forma basis (and treating any Indebtedness which becomes an obligation of such Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing;
(iii) except in the case of a merger with or into a Wholly Owned Subsidiary or a merger, the sole purpose of which is to change the Company's jurisdiction of incorporation, immediately after giving effect to such transaction on a pro forma basis, the Successor Company would be able to Incur an additional $1.00 of Indebtedness pursuant to Section 4.3(a);
(iv) immediately after giving effect to such transaction on a pro forma basis, the Successor Company shall have a Consolidated Net Worth in an amount that is not less than the Consolidated Net Worth of the Company immediately prior to such transaction; and
(iiiv) the Company has shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, merger or transfer or lease and such supplemental indenture (if any) comply with this Indenture. Opinions of Counsel required to be delivered under this Section or elsewhere in this Indenture and that all conditions precedent therein provided may have qualifications customary for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of all or substantially all opinions of the assets type required and counsel delivering such Opinions of Counsel may rely on certificates of the Company in accordance with this Section 6.04or government or other officials customary for opinions of the type required, including certificates certifying as to matters of fact. The Successor Company shall be the successor entity formed by such consolidation or into or with which to the Company is merged or to which the Company is sold or to which such conveyance, transfer or lease is made shall and succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.this
Appears in 1 contract
Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01 with respect to any Abraxas will not, in a single transaction or series of Securities:
(a) The Company shall not related transactions, consolidate or merge with or merge into any other Person in a transaction in which the Company is not the surviving entityPerson, or conveysell, transfer assign, 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 Abraxas' assets (determined on a consolidated basis for Abraxas and its properties and assets Restricted Subsidiaries), whether as an entirety or substantially as an entirety to, to any Person, Person unless
: (a) either (i) any Abraxas or such Restricted Subsidiary, as the case may be, shall be the surviving or continuing corporation or (ii) the Person (if other than Abraxas) formed by such consolidation or into or with which the Company Abraxas is merged or to whom the Company has conveyedPerson which acquires by sale, transferred assignment, transfer, lease, conveyance or leased its other disposition the properties and assets of Abraxas and its Restricted Subsidiaries substantially as an entirety is (the "Surviving Entity") (x) shall be a corporation, partnership, trust or other entity corporation organized and validly existing under the laws of Bermudathe United States or any state thereof or the District of Columbia (or if such Restricted Subsidiary was formed under the laws of Canada or any province or territory thereof, such Surviving Entity shall be a corporation organized and validly existing under the laws of Canada or any province or territory thereof) and (y) shall expressly assume, by supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the British Virgin Islands, Cayman Islands or Hong Kong due and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations punctual payment of the Company under principal of, premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes, this Indenture and the Securities, including Security Documents on the obligation part of Abraxas to pay Additional Amounts with respect to any jurisdiction in which it is organized be performed or resident for tax purposes;
observed; (iib) immediately after giving effect to such transaction and the assumption contemplated by clause (a)(ii)(y) above (including giving effect to any Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of such transaction), Abraxas or such Surviving Entity, as the case may be, (i) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of Abraxas immediately prior to such transaction and (ii) shall be able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12 hereof; (c) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (a)(ii)(y) above (including, without limitation, giving effect to any Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of DefaultDefault shall have occurred or be continuing; and (d) Abraxas or the Surviving Entity, and no event which, after notice or lapse of time or both, would become an Event of Defaultas the case may be, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyancesale, transfer assignment, transfer, lease, conveyance or lease and other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Indenture the applicable provisions hereof and that all conditions precedent therein provided for in this Indenture relating to such transaction have been complied with.
satisfied; provided, however, that such counsel may rely, as to matters of fact, on a certificate or certificates of officers of Abraxas. For purposes of the foregoing, the transfer (b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or 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 the Company Capital Stock of which constitutes all or substantially all of the properties and assets of Abraxas, shall be deemed to be the transfer of all or substantially all of the properties and assets of Abraxas. 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 this Indenture described under this Section 6.045.01) will not, and Abraxas will not cause or permit any Subsidiary Guarantor to, consolidate with or merge with or into any Person other than an Issuer or another Subsidiary Guarantor that is a Wholly Owned Restricted Subsidiary unless: (a) the successor entity formed by or surviving any such consolidation or into or with which merger (if other than the Company is merged or to which the Company is sold Subsidiary Guarantor) or to which such conveyancesale, transfer lease, conveyance or lease other disposition shall have been made is made a corporation organized and existing under the laws of the United States or any state thereof or the District of Columbia (or if such Restricted Subsidiary was formed under the laws of Canada or any province or territory thereof, such Surviving Entity shall succeed tobe a corporation organized and validly existing under the laws of Canada or any province or territory 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 substituted forcontinuing; and (d) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, and may exercise every right and power of, Abraxas could satisfy the Company under provisions of clause (b) of the first paragraph of this Indenture with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case Section 5.01. Any merger or consolidation of a lease, Subsidiary Guarantor with and into an Issuer (with such Issuer being the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, Surviving Entity) or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.another Subsidiary
Appears in 1 contract
Merger, Consolidation and Sale of Assets. Except as Neither of the Issuers shall consolidate with, merge with or into, or sell, convey, transfer, lease or otherwise provided as contemplated by Section 3.01 with respect to any dispose of all or substantially all of such entity’s property and assets (in one transaction or a series of Securitiesrelated transactions) to, any Person, or permit any Person to merge with or into such entity, unless:
(a) The Company such Issuer, as the case may be, shall not consolidate with or merge into any other Person in a transaction in which be the Company is not the surviving entitycontinuing Person, or conveythe Person (if other than such Issuer, transfer or lease its properties and assets substantially as an entirety to, any Person, unless
(ithe case may be) any Person formed by such consolidation or into or with which such Issuer, as the Company case may be, is merged or to whom the Company has conveyed, transferred that acquired or leased its properties such property and assets substantially as an entirety is (the “Surviving Person”), shall be a corporation, partnership, trust partnership or other entity limited liability company organized and validly existing under the laws of Bermudathe United States of America, any state thereof or the British Virgin IslandsDistrict of Columbia, Cayman Islands or Hong Kong and such the Surviving Person shall expressly assumes assume, by an indenture a supplemental indenture, executed and delivered to this Indenture the Trustee, all the obligations of the Company Issuers’ obligations under this the Indenture and the Securities, including including, but not limited to, the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposesAmounts;
(iib) immediately after giving effect to the such transaction, no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing; and
(iiic) the Company has delivered Issuers deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that such consolidation, merger, conveyance, merger or transfer or lease and such supplemental indenture comply with this Indenture provision and that all conditions precedent therein provided for herein relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the successor entity formed by such consolidation or into or with which the Company is merged or . The Surviving Person will succeed to which the Company is sold or to which such conveyance, transfer or lease is made shall succeed to, and be substituted forfor such Issuer, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor entity had been named as the Company hereincase may be, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 1 contract
Samples: Indenture (Urs Corp /New/)
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 shall will not consolidate with any other entity or merge accept a merger of any other entity into the Company or permit the Company to be merged into any other Person in a transaction in which the Company is not the surviving entity, or convey, transfer sell other than for cash or lease all or substantially all its properties and assets to another entity, or purchase all or substantially as an entirety toall the assets of another entity, any Person, unless
unless (i) any Person formed either the Company shall be the continuing entity, or the successor, transferee or lessee entity (if other than the Company) shall expressly assume, by indenture supplemental hereto satisfactory to the Trustee, executed and delivered by such consolidation entity prior to or into simultaneously with such consolidation, merger, sale or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudalease, the British Virgin Islandsdue and punctual payment of the principal of and interest and premium, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture if any, on all the Securities (and Coupons, if any), according to their tenor, and the due and punctual performance and observance of all other obligations of to the Company holders and the Trustee under this Indenture or under the Securities (and Coupons, if any) to be performed or observed by the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
Company; and (ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyancesale, transfer lease or lease and purchase the Company or the successor, transferee or lessee entity (if other than the Company) would not be in Default in the performance of any covenant or condition of this Indenture. A purchase by a Subsidiary of all or substantially all of the assets of another entity shall not be deemed to be a purchase of such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied withassets by the Company.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, lease of all or substantially all of the assets of the Company in accordance with this Section 6.0444 605, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidatedCoupons.
Appears in 1 contract
Samples: Indenture (Citigroup Funding 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 shall 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 in a transaction in which the Company is not the surviving entity, or sell, convey, transfer or lease all or substantially all its properties and assets substantially as an entirety toto another entity, any Person, unless
unless (i) any Person formed by such consolidation or into or with which either the Company is merged shall be the continuing entity, or to whom the Company has conveyedsuccessor, transferred transferee or leased its properties lessee entity (if other than the Company) shall be organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudathe United States or any State thereof and shall expressly assume, by indenture supplemental hereto, executed and delivered by such entity prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the British Virgin Islandsdue and punctual payment of the principal of and interest and premium, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture if any, on all the Securities, according to their tenor, and the due and punctual performance and observance of all other obligations of to the Company Holders and the Trustee under this Indenture or under the Securities to be performed or observed by the Company; and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, the transactionCompany or the successor, transferee or lessee entity (if other than the Company) would not be in Default in the performance of any covenant or condition of this Indenture and no Event of Default, and no event which, after notice or lapse of time or both, Default would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cashsale, conveyance, transfer or any conveyance or lease, lease of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 1 contract
Samples: Indenture (Healthpeak OP, LLC)
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 Borrower shall not consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entitywith, or conveysell, lease or otherwise transfer all or lease substantially all of its properties and assets substantially as an entirety to, any PersonPerson unless: (a) the successor entity which results from such consolidation or merger, unless
if not Borrower, or the Person which is the transferee of all or substantially all of Borrower’s assets, as the case may be (the “Surviving Entity”), (i) any Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties shall be a solvent FDIC-insured depository institution organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermuda, the British Virgin Islands, Cayman Islands United States or Hong Kong any State thereof or the District of Columbia or a solvent bank holding company or financial holding company that has majority ownership in a solvent FDIC-insured depository institution organized and such Person expressly assumes by an indenture supplemental to this Indenture all existing under the obligations laws of the Company under this Indenture United States or any State thereof or the District of Columbia, and (ii) shall have executed and delivered to the holder of the Subordinated Debenture its assumption of the due and punctual payment of the principal of and premium, if any, and interest on the Subordinated Debenture, and the Securitiesdue and punctual performance and observation of all of the covenants in the Subordinated Debenture, including this Agreement and any other Transaction Document to be performed or observed by Borrower and shall furnish to such holder an opinion of counsel to the obligation to pay Additional Amounts effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the Surviving Entity enforceable in accordance with respect to any jurisdiction in which it is organized or resident for tax purposes;
its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles; and (iib) immediately after giving effect to such transaction and treating any indebtedness that becomes an obligation of Borrower as a result of such transaction as having been incurred by Borrower at the time of such transaction, no Event of Default, and no event which, after notice Default or lapse of time or both, would become an Potential Event of DefaultDefault would exist. No such sale, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion lease or transfer of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of all or substantially all of the assets of Borrower shall have the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of this Indenture required or permitted to be done by the Board of Directors releasing Borrower or any officer of the Company may be done with like force and effect by the like board of directors or officer of any entity Surviving Entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described prescribed in this Section 6.04) shall be discharged 3.1.1 from all obligations and covenants its liability under this Indenture Agreement and the Securities Subordinated Debenture. Borrower agrees to provide written notice to Lender of its intention to consolidate with or merge with, or sell, lease or otherwise transfer all or substantially all of its assets to, any Person, no later than five Business Days after the earlier of: (x) Borrower’s receipt of a binding letter of intent with respect to such transaction; or (y) the execution of an agreement by and may thereupon be dissolved between Borrower and liquidatedany Person with respect to such transaction.
Appears in 1 contract
Samples: Subordinated Debenture Purchase Agreement (Plumas Bancorp)
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 For so long as the Notes are outstanding, the Company shall may not consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entity, corporation or convey, convey or transfer or lease its properties and assets substantially as an entirety to, to any Person, unless
unless (i) any the successor Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties shall be a corporation organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudathe United States (or any State thereof or the District of Columbia) and shall expressly assume, by a supplemental indenture, the British Virgin Islands, Cayman Islands or Hong Kong due and such Person expressly assumes by an indenture supplemental to this Indenture punctual payment of the principal of and interest on all the obligations outstanding Notes of such series and the performance of every covenant in this Fourth Supplemental Indenture on the part of the Company under this Indenture and the Securitiesto be performed or observed, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
and (iii) the Company has shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each Counsel stating that all conditions precedent set forth in the indenture relating to the consummation of such consolidation, merger, conveyance, conveyance or transfer or lease and entering into of such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
met. In case of any such consolidation, merger conveyance or transfer (b) Upon any consolidation with or merger into any other entity, or any sale other than for casha lease), or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the such successor entity formed by such consolidation or into or with which the Company is merged or corporation will succeed to which the Company 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, for the Company under this Indenture as obligor on the Notes of the applicable series, with the same effect as if such successor entity it had been named in this Fourth Supplemental Indenture as the Company herein, and thereafter, except in the case such obligor.
(b) For purposes of a leasethis Section 2.12, the predecessor Company shall be relieved conveyance or transfer of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power property of one or more Subsidiaries of the Company under this Indenturewhich property, in if held by the name Company instead of such Subsidiaries, would constitute all or substantially all the property of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all the property of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 1 contract
Samples: Fourth Supplemental Indenture (Southern Copper Corp/)
Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01 6.4 of the Base Indenture is hereby deleted and replaced in its entirety (with respect to the Notes only and not any other series of Securities:
(aSecurities issued pursuant to the Base Indenture) with the following: “The Company shall not consolidate with or merge with or into any other Person in a transaction in which the Company is not the surviving entityPerson, or convey, transfer or lease all or substantially all of its properties and assets substantially as an entirety to, to any Person, unless:
(ia) any Person formed by such consolidation or into or with which either the Company is merged the continuing corporation or to whom the Company has conveyedresulting, transferred surviving or leased its properties transferee Person will be a corporation organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudathe United States of America, any State thereof or the British Virgin IslandsDistrict of Columbia and will expressly assume, Cayman Islands or Hong Kong by a supplemental indenture, executed and such Person expressly assumes by an indenture supplemental delivered to this Indenture the Trustee all the obligations of the Company Company's obligations under the Notes and this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposesIndenture;
(iib) if as a result of such transaction the Notes become exchangeable into common stock or other equity securities issued by a third party, such third party assumes or fully and unconditionally guarantees all of the Company’s obligations under the Notes and this Indenture;
(c) immediately after giving effect to the such transaction, no Event of Default, Default and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing; and
(iiid) the Company has shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture indenture, comply with this Indenture Section and that all conditions precedent therein herein provided for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the satisfied. The successor entity Person formed by such consolidation or into or with which the Company is merged or to which the Company is sold or successor Person 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 under this Indenture with the same effect as if such successor entity Person had been named as the Company herein, ; and thereafter, except in the case of a lease, the predecessor Company shall be relieved lease of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name or substantially all of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease's assets, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities Notes. Subject to Article IX of the First Supplemental Indenture, the Company, the Trustee and the successor Person shall enter into a supplemental indenture to evidence the succession and substitution of such successor Person and such discharge and release of the Company. Such successor Person thereupon may cause to be signed, and may thereupon issue either in its own name or in the name of The Great Atlantic & Pacific Tea Company, any or all Notes issuable hereunder that theretofore shall not have been signed by the Company and delivered to the Trustee, and upon the order of such successor Person instead of the Company and subject to all of the terms, conditions and limitations in the Indenture, the Trustee shall authenticate and shall deliver any Notes that previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication pursuant to a Company Order, and any Notes that such successor Person thereafter shall cause to be dissolved signed and liquidateddelivered to the Trustee for that purpose. All of the Notes so issued shall in all respects have the same legal rank and benefit under the Indenture as the Notes theretofore or thereafter issued in accordance with the terms of the Indenture as though all of such Notes had been issued at the date of execution hereof. Prior to execution of any supplemental indenture pursuant to this Section, the Trustee shall receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger, conveyance, transfer or lease and any such assumption complies with the provisions of this Section.”
Appears in 1 contract
Samples: Supplemental Indenture (Great Atlantic & Pacific Tea Co 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 shall not will not, in any single transaction or series of related transactions, merge or consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entityPerson, or sell, assign, convey, transfer transfer, lease or lease its properties and assets substantially as an entirety to, any Person, unless
(i) any Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermuda, the British Virgin Islands, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, otherwise dispose of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries on a consolidated basis to any Person or group of Affiliated Persons, and the Company will not permit any of its Restricted Subsidiaries to enter into any such transaction or series of related transactions if such transaction or series of transactions, in accordance with this Section 6.04the aggregate, would result in the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries on a consolidated basis to any other Person or group of Affiliated Persons, unless at the time and after giving effect thereto:
(1) either (i) if the transaction is a merger or consolidation, the successor entity Company shall be the surviving Person of such merger or consolidation, or (ii) the Person (if other than the Company) formed by such consolidation or into or with which the Company is merged or to which the properties and assets of the Company is sold or its Restricted Subsidiaries, as the case may be, are sold, assigned, conveyed, 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 States of America, any state thereof or the District of Columbia and shall, in either case, expressly assume by a supplemental indenture to which such conveyancethis Indenture executed and delivered to the Trustee, transfer or lease is made shall succeed toin form satisfactory to the Trustee, and be substituted for, and may exercise every right and power of, all the obligations of the Company under the Notes and this Indenture with the same and, in each case, this Indenture shall remain in full force and effect;
(2) immediately after giving effect as if to such successor entity had been named as transaction or series of related transactions on a pro forma basis (and treating any Indebtedness not previously an obligation of the Company hereinor any of its Restricted Subsidiaries which becomes an obligation of the Company or any of its Restricted Subsidiaries 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 thereafter, be continuing;
(3) except in the case of the consolidation or merger of any Restricted Subsidiary with or into the Company or another Restricted Subsidiary, either:
(A) immediately before and immediately after giving effect to such transaction or transactions on a leasepro forma basis (assuming that the transaction or transactions occurred on the first day of the period of four fiscal quarters ending immediately prior to the consummation of such transaction or transactions, with the appropriate adjustments with respect to the transaction or transactions being included in such pro forma calculation), the predecessor Company (or the Surviving Entity if the Company is not the continuing obligor under this Indenture) could incur $1.00 of additional Indebtedness under Section 5.09(a); or
(B) immediately after giving effect to such transaction or transactions on a pro forma basis (assuming that the transaction or transactions occurred on the first day of the period of four fiscal quarters ending immediately prior to the consummation of such transaction or transactions, with the appropriate adjustments with respect to the transaction or transactions being included in such pro forma calculation), the Consolidated Fixed Charge Coverage Ratio of the Company (or the Surviving Entity if the Company is not the continuing obligor under this Indenture) will be equal to or greater than the Consolidated Fixed 72 Charge Coverage Ratio of the Company immediately before such transaction or transactions;
(4) if the Company is not the continuing obligor under this Indenture, then each Subsidiary Guarantor, unless it is the Surviving Entity, shall be relieved have by supplemental indenture to this Indenture confirmed that its Subsidiary Guarantee of all the Notes shall apply to the Surviving Entity’s obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own nameNotes; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, and
(5) the Company (or any successor entity which shall theretofore have become such in the manner described in Surviving Entity if the Company is not the continuing obligor under this Section 6.04Indenture) shall be discharged from all obligations have delivered to the Trustee, in form and covenants substance reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer, lease or other disposition and any supplemental indenture in respect thereof comply with the requirements under this Indenture and that the Securities requirements of this paragraph have been satisfied. Notwithstanding the foregoing, this Section 6.01(a) shall not apply to any sale, assignment, transfer, conveyance, lease or other disposition of properties or assets between or among the Company and the Subsidiary Guarantors.
(b) Each Subsidiary Guarantor may thereupon be dissolved consolidate with or merge into or sell or otherwise dispose of all or substantially all of its properties and liquidatedassets to the Company or another Subsidiary Guarantor without limitation, except to the extent any such transaction is subject to Section 6.01(a). Each Subsidiary Guarantor may consolidate with or merge into or sell all or substantially all of its properties and assets to a Person other than the Company or another Subsidiary Guarantor (whether or not affiliated with the Subsidiary Guarantor); provided that (i) if the surviving Person is not the Subsidiary Guarantor, the surviving Person agrees to assume such Subsidiary Guarantor’s Subsidiary Guarantee and all its obligations pursuant to this Indenture (except to the extent Section 11.02 would result in the release of such Subsidiary Guarantee) and (ii) such transaction does not (x) violate Article 5 or (y) result in a Default or Event of Default immediately thereafter that is continuing.
Appears in 1 contract
Samples: First Supplemental Indenture (Comstock Resources 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 shall not not, in any single transaction or series of related transactions, consolidate or merge with or merge into any other Person in a transaction in which (whether or not the Company is not the surviving entitySurviving Person), or conveysell, transfer assign, transfer, lease, convey or lease otherwise dispose of all or substantially all of its properties or assets (determined on a consolidated basis for the Company and its Restricted Subsidiaries) in one or more related transactions to, another Person, and the Company will not permit any Restricted Subsidiary to enter into any such transaction or series of related transactions if such transaction or series of related transactions, in the aggregate, would result in a sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties and assets substantially of the Company and the Restricted Subsidiaries, taken as an entirety toa whole, any to another Person, unless:
(i) any the Surviving Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust corporation organized or other entity validly existing under the laws of Bermudathe United States, any State thereof or the British Virgin Islands, Cayman Islands or Hong Kong and such District of Columbia;
(ii) the Surviving Person expressly (if other than the Company) assumes by an indenture supplemental to this Indenture (a) all the obligations of the Company under this Indenture the U.S. Notes (and the SecuritiesGuarantees of the Company's Domestic Restricted Subsidiaries shall be confirmed as applying to such Surviving Person's obligations), including this Indenture, the obligation Company Guarantee and, if then in effect, the Registration Rights Agreement pursuant to pay Additional Amounts with respect a supplemental indenture or other written agreement, as the case may be, in a form reasonably satisfactory to any jurisdiction the Trustee and (b) by amendment, supplement or other instrument (in which it is organized form and substance satisfactory to the Trustee and the Collateral Agent), executed and delivered to the Trustee, all Obligations of the Company under the Collateral Agreements and the Intercreditor Agreement, 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 resident for tax purposescontinue the perfection of the Lien created under the Collateral Agreements on the Collateral owned by or transferred to the surviving entity;
(iiiii) immediately both before and after giving effect to the such transaction, no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing;
(iv) after giving pro forma effect to such transaction, the Surviving Person (x) would have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately preceding such transaction and (y) would be permitted to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to the covenant described under Section 4.12; and
(iiiv) the Company has or the Surviving Person shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyancesale, transfer assignment, transfer, lease, conveyance or lease and other disposition and, if a supplemental indenture or any amendment or supplement to the Collateral Agreements is required in connection with such transaction, such supplemental indenture or such amendment or supplement comply with the applicable provisions of this Indenture and that all conditions precedent therein provided for in this Indenture relating to such transaction have been complied with.
satisfied to the extent such conditions are required to be satisfied thereunder either prior to or concurrent with the consummation of the applicable transaction. Notwithstanding clauses (biii) Upon and (iv) above, any consolidation with or merger into any other entity, or any sale Restricted Subsidiary (other than for cashthe Dutch Issuer) may consolidate with, merge into or any conveyance or lease, of transfer all or substantially all part of its properties and assets to the assets Company. In the event of any transaction (other than a lease) described in and complying with the Company conditions listed in accordance with this Section 6.04, the successor entity formed by such consolidation or into or with immediately preceding paragraph in which the Company is merged or to which not the Company is sold or to which Surviving Person, such conveyance, transfer or lease is made Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of, the Company, and the Company under shall be discharged from its obligations under, this Indenture, the U.S. Notes, the Domestic Collateral Agreements and the Registration Rights Agreement. Each Domestic Guarantor (other than any Domestic Guarantor whose Domestic Guarantee is to be released in accordance with the terms of the Domestic Guarantee and this Indenture in connection with any transaction complying with the same effect as if such successor entity had been named as provisions of Section 4.16) will not, and the Company hereinwill not cause or permit any Domestic Guarantor to, consolidate with or merge with or into any Person other than the Company or any other Domestic Guarantor unless:
(1) the entity formed by or surviving any such consolidation or merger (if other than the Domestic Guarantor) or to which such sale, lease, conveyance or other disposition shall have been made is a corporation organized and thereafterexisting under the laws of the United States or any State thereof or the District of Columbia;
(2) such entity assumes (a) by supplemental indenture (in form and substance satisfactory to the Trustee), except executed and delivered to the Trustee, all of the obligations of the Domestic Guarantor under the Domestic Guarantee and, to the extent applicable, the Intercreditor Agreement and (b) by amendment, supplement or other instrument (in form and substance satisfactory to the Trustee and the Collateral Agent) executed and delivered to the Trustee and the Collateral Agent, all obligations of the Domestic Guarantor under the Domestic Collateral Agreements and, to the extent applicable, the Intercreditor Agreement 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 Domestic Collateral Agreements on the Collateral owned by or transferred to the surviving entity;
(3) immediately both before and 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 (iv) of the first paragraph of this covenant; and
(5) the Company 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 or any amendment or supplement to the Domestic Collateral Agreements is required in connection with such transaction, such supplemental indenture or such amendment or supplement comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied. Notwithstanding clauses (3) and (4) above, any Restricted Subsidiary (other than the Dutch Issuer) may consolidate with, merge into or transfer all or part of its properties and assets to the Company or any Domestic Guarantor. Any merger or consolidation of (i) a Domestic Guarantor with and into the Company (with the Company being the surviving entity) or another Domestic Guarantor or (ii) a Domestic Guarantor or the Company with an Affiliate organized solely for the purpose of reincorporating such Domestic Guarantor or the Company in another jurisdiction in the United States or any State thereof or the District of Columbia or changing the legal form of such Domestic Guarantor or the Company need only comply with in the case of a merger or consolidation involving (x) the Company as described in clause (ii) above, clauses (ii) and (v) of the first paragraph of this covenant and (y) in the case of a Domestic Guarantor as described in (1) clause (i) above, clause (5) of the immediately preceding paragraph and (2) clause (ii) above, clauses (2) and (5) of the immediately preceding paragraph.
(b) The Dutch Issuer shall not, in any single transaction or series of related transactions, consolidate or merge with or into (whether or not the Dutch Issuer is the Surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (determined on a consolidated basis for the predecessor Company Dutch Issuer and the Restricted Subsidiaries of the Dutch Issuer) in one or more related transactions to, another Person, and the Dutch Issuer will not permit any Restricted Subsidiary of the Dutch Issuer to enter into any such transaction or series of related transactions if such transaction or series of related transactions, in the aggregate, would result in a sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties and assets of the Dutch Issuer and the Restricted Subsidiaries of the Dutch Issuer, taken as a whole, to another Person, unless:
(i) the Surviving Person is a corporation organized or existing under the laws of the jurisdiction of organization of the Dutch Issuer or Foreign Guarantor that is the subject of such transaction;
(ii) the Surviving Person (if other than the Dutch Issuer) assumes (a) all the obligations of the Dutch Issuer under the Dutch Notes (and the Foreign Guarantees of the Guarantors shall be relieved of all obligations confirmed as applying to such Surviving Person's obligations), this Indenture, the Foreign Guarantee and, if then in effect, the Registration Rights Agreement pursuant to a supplemental indenture or other written agreement, as the case may be, in a form reasonably satisfactory to the Trustee and covenants under this Indenture (b) by amendment, supplement or other instrument (in form and substance satisfactory to the Trustee and the SecuritiesCollateral Agent), executed and from time delivered to time such entity may exercise each and every right and power the Trustee, all Obligations of the Company under this Indenture, 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 name perfection of the CompanyLien created under the Foreign Collateral Agreements on the Collateral owned by or transferred to the surviving entity;
(iii) immediately both before and after giving effect to such transaction, no Default or in its own name; Event of Default shall have occurred and any act be continuing;
(iv) after giving pro forma effect to such transaction, the Surviving Person (x) would have a Consolidated Net Worth equal to or proceeding by any provision of this Indenture required or permitted to be done by greater than the Board of Directors or any officer Consolidated Net Worth of the Company may immediately preceding such transaction and (y) would be done permitted to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to the covenant described under this Section 4.12; and
(v) the Dutch Issuer or the Surviving Person 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 or any amendment or supplement to the Foreign Collateral Agreements is required in connection with like force and effect by such transaction, such supplemental indenture or such amendment or supplement comply with the like board of directors or officer of any entity that shall at the time be the successor applicable provisions of the Company hereunderIndenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied to the extent such conditions are required to be satisfied thereunder either prior to or concurrent with the consummation of the applicable transaction. Notwithstanding clauses (iii) and (iv) above, any Restricted Subsidiary of the Dutch Issuer may consolidate with, merge into or transfer all or part of its properties and assets to the Dutch Issuer. In the event of any transaction (other than a lease) described in and complying with the conditions listed in the immediately preceding paragraph in which the Dutch Issuer is not the Surviving Person, such sale or conveyanceSurviving Person shall succeed to, but not any such leaseand be substituted for, and may exercise every right and power of, the Company (or any successor entity which shall theretofore have become such in Dutch Issuer, and the manner described in this Section 6.04) Dutch Issuer shall be discharged from its obligations under, this Indenture, the Dutch Notes, the Foreign Collateral Agreements and the Registration Rights Agreement. Each Foreign Guarantor (other than any Foreign Guarantor whose Foreign Guarantee is to be released in accordance with the terms of the Foreign Guarantee and this Indenture in connection with any transaction complying with the provisions of this Section 4.16) will not, and the Dutch Issuer will not cause or permit any Foreign Guarantor to, consolidate with or merge with or into any Person other than the Dutch Issuer or any other Foreign Guarantor unless:
(1) the entity formed by or surviving any such consolidation or merger (if other than the Foreign 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 jurisdiction of organization of the Dutch Issuer or Foreign Guarantor that is the subject of such transaction;
(2) such entity assumes (a) by supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, all of the obligations of the Foreign Guarantor under the Foreign Guarantee and (b) by amendment, supplement or other instrument (in form and substance satisfactory to the Trustee and the Collateral Agent) executed and delivered to the Trustee and the Collateral Agent, all obligations of the Foreign Guarantor under the Foreign Collateral Agreements and covenants 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 Foreign Collateral Agreements on the Collateral owned by or transferred to the surviving entity;
(3) immediately both before and 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 (iv) of the first paragraph of this covenant; and
(5) the Dutch Issuer 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 or any amendment or supplement to the Foreign Collateral Agreements is required in connection with such transaction, such supplemental indenture or such amendment or supplement comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied. Notwithstanding clauses (3) and (4) above, any Restricted Subsidiary of the Securities Dutch Issuer may consolidate with, merge into or transfer all or part of its properties and may thereupon be dissolved assets to the Dutch Issuer, the U.S. Issuer or any other Guarantor. Any merger or consolidation of (i) a Foreign Guarantor with and liquidatedinto the Dutch Issuer (with the Dutch Issuer being the surviving entity) or another Foreign Guarantor or (ii) a Foreign Guarantor or the Dutch Issuer with an Affiliate organized solely for the purpose of reincorporating such Foreign Guarantor or the Dutch Issuer in another jurisdiction in the jurisdiction of organization of the Dutch Issuer or Foreign Guarantor that is the subject of such transaction or changing the legal form of such Foreign Guarantor or the Dutch Issuer need only comply with in the case of a merger or consolidation involving (x) the Dutch Issuer as described in clause (ii) above, clauses (ii) and (v) of the first paragraph of this covenant and (y) in the case of a Foreign Guarantor as described in (1) clause (i) above, clause (5) of the immediately preceding paragraph and (2) clause (ii) above, clauses (2) and (5) of the immediately preceding paragraph.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01 with respect to any The Company will not, in a single transaction or series of Securities:
(a) The Company shall not related transactions, consolidate or merge with or merge into any other Person in a transaction in which Person, or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Subsidiary of the Company is not to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the surviving entity, Company’s assets (determined on a consolidated basis for the Company and the Company’s Subsidiaries) whether as an entirety or convey, transfer or lease its properties and assets substantially as an entirety to, to any Person; provided, unlessthat the Company may merge with and into Kratos so long as:
(1) Kratos shall expressly assume, (i) any Person formed by such consolidation or into or with which supplemental indenture, executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium, if any, interest and Additional Interest, if any, on all of the Notes and the performance of every covenant of the Notes and this Indenture on the part of the Company is merged to be performed or to whom the Company has conveyedobserved thereunder, transferred or leased its properties and assets substantially as an entirety is a corporation(ii) by amendment, partnership, trust supplement or other entity validly existing under instrument, executed and delivered to the laws of BermudaTrustee, the British Virgin Islands, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations of the Company under this Indenture 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 Securities, including perfection of the obligation Lien created under the Collateral Agreements on the Collateral owned by or transferred to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposesthe surviving entity;
(ii2) immediately after giving effect to promptly following the transactionmerger of the Company into Kratos, no Event Kratos shall give the Trustee and the Holders written notice of Defaultthe Stage II Notes Exchange Redemption, and no event which, after notice or lapse of time or both, would become an Event of Default, in accordance with the provisions under Section 3.01(e)(ii);
(3) the Xxxxxx Acquisition shall have occurred been consummated;
(4) all assets (including the Xxxxxx Shares) and be continuingliabilities (including the Notes) of the Company shall become assets and liabilities of Kratos; and
(iii5) the Company has Kratos shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyancesale, transfer assignment, transfer, lease, conveyance or lease and 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 therein provided for in this Indenture relating to such transaction have been complied with.
satisfied. For purposes of the foregoing, the transfer (b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or 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 Company, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. 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 this Section 6.045.01 and Section 4.11) will not, and the successor 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 into or with which merger (if other than the Company is merged or to which the Company is sold Guarantor) or to which such conveyancesale, transfer lease, conveyance or lease other disposition shall have been made is made shall succeed to, a corporation organized and be substituted for, and may exercise every right and power of, existing under the Company under this Indenture with laws of the same effect as if United States or any State thereof or the District of Columbia;
(2) such successor entity had been named as the Company herein, and thereafter, except (within fifteen Business Days in the case of a leasethe contemplated merger of Acquisition Co. with and into Xxxxxx) assumes (a) by supplemental indenture, executed and delivered to the predecessor Company shall be relieved Trustee, all of all the obligations and covenants of the Guarantor under this Indenture the Guarantee and the Securities, and from time to time such entity may exercise each and performance of every right and power covenant of the Company under Guarantee and this Indenture, (b) by an assumption and joinder, executed and delivered to the Trustee, the performance of every covenant of the Registration Rights Agreement and (c) by amendment, supplement or other instrument executed and delivered to the Trustee and the Collateral Agent, all obligations of the Guarantor 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; and
(3) immediately after giving effect to such transaction (other than the contemplated merger of Acquisition Co. with and into Xxxxxx), no Default or Event of Default shall have occurred and be continuing. Any merger or consolidation of (i) a Guarantor with and into another Guarantor or (ii) a Guarantor with an Affiliate organized solely for the purpose of reincorporating such Guarantor in another jurisdiction in the name United States or any state thereof or the District of Columbia need only comply with clause (2) of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidatedimmediately preceding paragraph.
Appears in 1 contract
Samples: Indenture (Kratos Defense & Security Solutions, 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 shall 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 in a transaction in which the Company is not the surviving entity, or sell, convey, transfer or lease all or substantially all its properties and assets substantially as an entirety toto another entity, any Person, unless
unless (i) any Person formed either the Company shall be the continuing entity, or the successor, transferee or lessee entity (if other than the Company) shall expressly assume, by indenture supplemental hereto, executed and delivered by such consolidation entity prior to or into simultaneously with such consolidation, merger, sale, conveyance, transfer or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudalease, the British Virgin Islandsdue and punctual payment of the principal of and interest and premium, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture if any, on all the Securities, according to their tenor, and the due and punctual performance and observance of all other obligations of to the Company Holders and the Trustee under this Indenture or under the Securities to be performed or observed by the Company; and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, conveyance, transfer or lease and such supplemental indenture comply with the Company or the successor, transferee or lessee entity (if other than the Company) would not be in Default in the performance of any covenant or condition of this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied withIndenture.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cashsale, or any conveyance or lease, transfer lease of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 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 with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Appears in 1 contract
Samples: Indenture (DowDuPont 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 shall not consolidate with or merge into any other Person in a transaction in which the Company is not the surviving entitywith or into, or convey, transfer or lease all or substantially all its properties and assets substantially as an entirety to, any Person, unless:
(i) any the resulting, surviving or transferee Person formed by such consolidation or into or with which (the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is "Successor Company") shall be a corporation, partnership, trust trust, limited liability company or other similar entity validly organized and existing under the laws of Bermudathe United States of America, any State thereof or the British Virgin IslandsDistrict of Columbia and the Successor Company (if not the Company) shall expressly assume, Cayman Islands or Hong Kong by supplemental indenture, executed and such Person expressly assumes by an indenture supplemental delivered to this Indenture the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Debentures and this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposesIndenture;
(ii) immediately after giving effect to the such transaction, no default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing; and;
(iii) the Company has shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, mergermerger or transfer and such supplemental indenture, if any, comply with this Indenture. For purposes of this Section the sale, lease, conveyance, transfer or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entityassignment, transfer, or any sale other than for cash, or any conveyance or lease, disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company in accordance with this Section 6.04on a consolidated basis, shall be deemed to be the successor entity formed by such consolidation transfer of all or into or with which substantially all of the properties and assets of the Company. The Successor Company is merged or to which the Company is sold or to which such 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 with the same effect as if such successor entity had been named as the Company hereinIndenture, and thereafterbut, except in the case of a lease, the predecessor Company shall be relieved lease of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in substantially all its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, 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 6.04) shall be discharged from all obligations obligation to pay the principal of and covenants under this Indenture and interest on the Securities and may thereupon be dissolved and liquidatedDebentures.
Appears in 1 contract
Samples: Indenture (Oxford Health Plans 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 shall will not (i) consolidate or merge with or merge into into, any other Person in a transaction in which the Company is not the surviving entityor (ii) sell, or assign, convey, lease, transfer or lease otherwise dispose of all or substantially all of its properties and or assets substantially as an entirety to, to any PersonPerson or Persons in one or a series of transactions, unless
(i) any Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermuda, the British Virgin Islands, Cayman Islands or Hong Kong and such Person expressly assumes by an indenture supplemental to this Indenture all the obligations of the Company under this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
(ii) immediately after giving effect to the transactionthereto, no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing; , and:
(iiiA) the transferee or the entity resulting from such consolidation, surviving such merger or succeeding to such properties or assets (X) shall be organized under the laws of the United States, any state thereof or the District of Columbia and shall expressly assume, pursuant to an agreement reasonably acceptable to the Trustee and the Collateral Agent, all of the Company’s obligations under this Indenture, the Notes and the Security Documents; and (Y) shall be a corporation, limited liability company or limited partnership;
(B) the Company has delivered shall provide to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidationsale, mergerassignment, conveyance, lease, transfer or lease other disposition and such the supplemental indenture in respect thereof comply with this Indenture and that all conditions precedent therein herein provided for relating to such transaction transactions have been complied with;
(C) other than with respect to an Exempted Change of Control Transaction, either (X) the Project Cost Threshold has been reached on or prior to the consummation of the applicable consolidation, merger or other disposition, the proposed transferee or surviving entity commits to complete the Project on the timeline contemplated by the EPC Agreement, and the Company’s Board of Directors has reasonably determined in good faith that such transferee or surviving entity has the reasonable financial wherewithal to do so; or (Y) Substantial Completion for both Units 1 and 2 of the Facilities have occurred; and
(D) after giving effect to such consolidation, merger or sale of all or substantially all of such properties or assets, the Notes shall have at least two of the following three credit ratings: at least BBB- from S&P; at least Baa3 from Xxxxx’x and at least BBB- from Fitch; and prior to the consummation of any such transaction, the Company shall have provided to the Trustee an Officer’s Certificate to such effect or a copy of the letters from such applicable rating agencies confirming such ratings.
(b) Upon any consolidation with the consummation of such transaction described in Section 5.01(a), the resulting, surviving or merger into any other succeeding entity, or any sale if other than for cashthe Company, or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the 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 conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power and shall perform every obligation of, the Company under this Indenture Indenture, the Notes and the Security Documents with the same effect as if such successor entity had been named as the Company herein, herein and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidatedtherein.
Appears in 1 contract
Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01 6.4 of the Base Indenture is hereby deleted and replaced in its entirety (with respect to the Notes only and not any other series of Securities:
(aSecurities issued pursuant to the Base Indenture) with the following: “The Company shall not consolidate with or merge with or into any other Person in a transaction in which the Company is not the surviving entityPerson, or convey, transfer or lease all or substantially all of its properties and assets substantially as an entirety to, to any Person, unless:
(ia) any Person formed by such consolidation or into or with which either the Company is merged the continuing corporation or to whom the Company has conveyedresulting, transferred surviving or leased its properties transferee Person will be a corporation organized and assets substantially as an entirety is a corporation, partnership, trust or other entity validly existing under the laws of Bermudathe United States of America, any State thereof or the British Virgin IslandsDistrict of Columbia and will expressly assume, Cayman Islands or Hong Kong by a supplemental indenture, executed and such Person expressly assumes by an indenture supplemental delivered to this Indenture the Trustee all the obligations of the Company Company's obligations under the Notes and this Indenture and the Securities, including the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposesIndenture;
(iib) if as a result of such transaction the Notes become exchangeable into common stock or other equity securities issued by a third party, such third party assumes or fully and unconditionally guarantees all of the Company’s obligations under the Notes and this Indenture;
(c) immediately after giving effect to the such transaction, no Event of Default, Default and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing; and
(iiid) the Company has shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture indenture, comply with this Indenture Section and that all conditions precedent therein herein provided for relating to such transaction have been complied with.
(b) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the satisfied. The successor entity Person formed by such consolidation or into or with which the Company is merged or to which the Company is sold or successor Person 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 under this Indenture with the same effect as if such successor entity Person had been named as the Company herein, ; and thereafter, except in the case of a lease, the predecessor Company shall be relieved lease of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name or substantially all of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, but not any such lease's assets, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the Securities Notes. Subject to Article IX of the Second Supplemental Indenture, the Company, the Trustee and the successor Person shall enter into a supplemental indenture to evidence the succession and substitution of such successor Person and such discharge and release of the Company. Such successor Person thereupon may cause to be signed, and may thereupon issue either in its own name or in the name of The Great Atlantic & Pacific Tea Company, any or all Notes issuable hereunder that theretofore shall not have been signed by the Company and delivered to the Trustee, and upon the order of such successor Person instead of the Company and subject to all of the terms, conditions and limitations in the Indenture, the Trustee shall authenticate and shall deliver any Notes that previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication pursuant to a Company Order, and any Notes that such successor Person thereafter shall cause to be dissolved signed and liquidateddelivered to the Trustee for that purpose. All of the Notes so issued shall in all respects have the same legal rank and benefit under the Indenture as the Notes theretofore or thereafter issued in accordance with the terms of the Indenture as though all of such Notes had been issued at the date of execution hereof. Prior to execution of any supplemental indenture pursuant to this Section, the Trustee shall receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger, conveyance, transfer or lease and any such assumption complies with the provisions of this Section.”
Appears in 1 contract
Samples: Second Supplemental Indenture (Great Atlantic & Pacific Tea Co 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 shall not consolidate or merge with or merge into any other Person in a transaction in which (whether or not the Company is not the surviving entitySurviving Person), or, directly or conveyindirectly through one or more Restricted Subsidiaries, transfer sell, assign, transfer, lease, convey or lease otherwise dispose of all or substantially all of its properties and or assets substantially as an entirety toin one or more related transactions, any Person, unless
to another Person or Persons unless (i) any the Surviving Person formed by such consolidation or into or with which the Company is merged or to whom the Company has conveyed, transferred or leased its properties and assets substantially as an entirety is a corporation, partnership, trust corporation or other entity validly limited liability company or limited partnership organized or existing under the laws of Bermudathe United States, any state thereof or the British Virgin IslandsDistrict of Columbia; provided that at any time the Company or its successor is not a corporation, Cayman Islands or Hong Kong and such there shall be a co-issuer of the Notes that is a corporation (ii) the Surviving Person expressly (if other than the Company) assumes by an indenture supplemental to this Indenture all the obligations of the Company under this Indenture and the Securities, including Notes pursuant to a supplemental indenture in a form reasonably satisfactory to the obligation to pay Additional Amounts with respect to any jurisdiction in which it is organized or resident for tax purposes;
Trustee; (iiiii) immediately after giving effect to the such transaction, no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, Default shall have occurred and be continuing; and
(iiiiv) the Company has delivered Surviving Person causes such amendments, supplements or other instruments to be executed, delivered, filed and recorded, as applicable, in such jurisdictions as may be required by applicable law to preserve and protect the Lien of the Security Documents on the Collateral owned by or transferred to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer Surviving Person; (v) the Collateral owned by or lease and such supplemental indenture comply with this Indenture and that all conditions precedent therein provided for relating transferred to such transaction have been complied with.
the Surviving Person shall (ba) Upon any consolidation with or merger into any other entity, or any sale other than for cash, or any conveyance or lease, of all or substantially all of the assets of the Company in accordance with this Section 6.04, the successor entity formed by such consolidation or into or with which the Company is merged or continue to which the Company 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 under this Indenture with the same effect as if such successor entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations and covenants constitute Collateral under this Indenture and the SecuritiesSecurity Documents, (b) be subject to the Lien in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Notes, and from time (c) not be subject to time such entity may exercise each any Lien other than Permitted Collateral Liens; (vi) the property and every right and power assets of the Company Person which is merged or consolidated with or into the Surviving Person, to the extent that they are property or assets of the types which would constitute Collateral under the Security Documents, shall be treated as after-acquired property and the Surviving Person shall take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required in this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of 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 of directors or officer of any entity that shall (vii) at the time be the successor of the Company hereunder. In the event such transaction and after giving pro forma effect thereto (other than a merger with a wholly-owned Subsidiary or for purposes of any such sale or conveyance, but not any such leasereincorporating into another state), the Company Surviving Person would (a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.07(a) or any successor entity which shall theretofore (b) have become such in a lower Debt to Operating Cash Flow Ratio immediately after the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and transaction than the Securities and may thereupon be dissolved and liquidatedCompany’s Debt to Operating Cash Flow Ratio immediately prior to the transaction.
Appears in 1 contract
Samples: Indenture (Gray Television Inc)
