Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may not consolidate or merge with or into or wind up into (whether or not the Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactions, to any Person unless: (1) the Company is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation; (2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments; (3) immediately after such transaction, no Default exists; (4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period, (A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or (B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction; (5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and (6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture. (b) The Successor Company will succeed to, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing, (1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary, (2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and (3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof, (1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and (2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 7 contracts
Samples: Indenture (Sabre Corp), Indenture (Sabre Corp), Indenture (Sabre Corp)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate with, amalgamate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets assets, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Issuer shall be the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Person organized or existing under the laws of a jurisdiction described in clause (a) of the definition of Permitted Jurisdiction (such Person, as the case may be, being herein called the “Successor Company”);
(2) the Successor Company, if other than the Issuer, expressly assumes all the obligations of the Issuer under this Indenture and the Notes pursuant to a supplemental indenture;
(3) immediately after such transaction no Event of Default shall have occurred and be continuing;
(4) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period:
(A) the Successor Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or
(B) the Fixed Charge Coverage Ratio for the Successor Company and the Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and the Restricted Subsidiaries immediately prior to such transaction;
(5) each Subsidiary Guarantor, unless it is the other party to the transactions described in Section 5.01(a)(1) through (4), in which case Section 5.01(b)(2) shall apply, shall have by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(6) the Issuer or such Successor Company, as applicable, shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger, sale, assignment, transfer, lease, conveyance or disposition and such supplemental indentures, amendments, supplements or other instruments, if any, comply with this Indenture. The Successor Company shall succeed to, and be substituted for, the Issuer under this Indenture and the Notes, and the Issuer shall automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (3) and (4),
(A) the Issuer may consolidate with, amalgamate or merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Subsidiary Guarantor;
(B) any Restricted Subsidiary may consolidate with, amalgamate or merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Issuer;
(C) the Issuer may consolidate with, amalgamate or merge into with an Affiliate of the Issuer solely for the purpose of reincorporating or reorganizing the Issuer in any jurisdiction described in clause (a) of the definition of Permitted Jurisdiction so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby (unless such increase is permitted by this Indenture);
(D) the Issuer may convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of any jurisdiction described in clause (a) of the definition of Permitted Jurisdiction; and
(E) the Issuer may change its name.
(b) Subject to Section 10.06, each Subsidiary Guarantor shall not, and the Issuer shall not permit any Subsidiary Guarantor to, consolidate with, amalgamate or merge into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all its properties or assets, taken as a whole, in one or more related transactions, to any Person (other than the Issuer or a Subsidiary Guarantor) unless:
(1) (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Companysuch Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, a Permitted Jurisdiction (such Subsidiary Guarantor or any territory thereof (such Person, as the case may be, being herein called the “Successor CompanyPerson”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 4 contracts
Samples: Indenture (FTAI Aviation Ltd.), Indenture (FTAI Aviation Ltd.), Indenture (FTAI Aviation Ltd.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Borrower may not not, directly or indirectly, consolidate or merge with or into or wind up into (whether or not the Company Borrower is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated the Borrower’s properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company Borrower is the surviving Person entity or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyBorrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, is a Person corporation, partnership (including a limited partnership), trust or limited liability company organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person Successor Company is not a corporation, a co-obligor of the Notes Loans is a corporation;
(2) the Successor Company, if other than the CompanyBorrower, expressly assumes all the obligations of the Company Borrower under the Notes this Agreement and the Security Documents pursuant to supplemental indentures or other documents or instrumentsLoan Documents;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company Borrower or the Company Successor Company, as applicable, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in Section 7.03(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Company Borrower (or, if applicable, the Successor Company) and its Restricted Subsidiaries would be greater than the Fixed Charge Coverage such Ratio for the Company Borrower and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Subsidiary Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b7.04(c)(1)(B) hereof shall apply, shall have by supplemental indenture supplement to the Guaranty confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Loan Documents; and;
(6) the Company Borrower (or, if applicable, the Successor Company) shall have delivered to the Trustee Administrative Agent an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indenturessupplement to the Guaranty, if any, comply with this IndentureAgreement;
(7) the Collateral transferred to the Successor Company will (a) continue to constitute Collateral under this Agreement and the Collateral Documents with the same relative priorities as existed immediately prior to such transaction, (b) be subject to the Lien in favor of the Collateral Agent for the benefit of the Senior Credit Parties, and (c) not be subject to any Lien, other than Liens permitted by the terms of this Agreement; and
(8) to the extent that the assets of the Person which is merged or consolidated with or into the Successor Company are assets of the type which would constitute Collateral under the Collateral Documents, the Successor Company will take such actions as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Collateral Documents in the manner and to the extent required in this Agreement.
(b) The Successor Company will shall succeed to, and be substituted for the Company Borrower, as the case may be, under this Indenture Agreement and the NotesCollateral Documents. Notwithstanding the foregoing,clauses (3) and (4) of Section 7.04(a) hereof:
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company Borrower or any Restricted Subsidiary,a Subsidiary Guarantor; and
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Borrower may merge with an Affiliate of the Company Borrower, as the case may be, solely for the purpose of reincorporating the Company Borrower in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Borrower and its Restricted Subsidiaries is not increased thereby; and.
(2c) Holdings may Subject to Section 7.05 hereof, no Subsidiary Guarantor shall, and the Borrower shall not permit any Subsidiary Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not such Subsidiary Guarantor is the Company; provided that surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Guarantor is the surviving entity or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, trust or limited liability company organized or existing under the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees laws of the Senior Credit Facilities, such parent company will, within 30 days jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes on United States, any state thereof, the same terms District of Columbia, or any territory thereof (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 4 contracts
Samples: Senior Secured Credit Agreement (Polymer Group Inc), Credit Agreement (Polymer Group Inc), Credit Agreement (Polymer Group Inc)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Neither the Parent nor Finance LLC may not consolidate or merge with or into or wind up into (whether or not the Company such Person is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company Parent or Finance LLC, as applicable, is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyParent or Finance LLC) or the Person to which whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership (including a limited partnership), trust or limited liability company organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia, Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that provided, in the case where the surviving of Finance LLC, that if such Person is not a corporation, a co-obligor of the Notes is a corporationcorporation organized or existing under such laws;
(2) the Successor Company, if other than the CompanyParent or Finance LLC, expressly assumes all the obligations of the Company Parent or Finance LLC, as applicable, under this Indenture and the Notes and or the Security Documents Parent’s Guarantee, as applicable pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company Parent, as applicable, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, Consolidated Leverage Ratio test set forth in Section 4.09(a) hereof or
(B) the Fixed Charge Coverage Consolidated Leverage Ratio for the Successor Company or the Parent, as applicable, and its Restricted Subsidiaries would be greater less than the Fixed Charge Coverage Ratio or equal to such ratio for the Company Parent and its Restricted Subsidiaries immediately prior to such transaction;
(5) if the Parent or Finance LLC is not the Successor Company, each GuarantorGuarantor (except each Guarantor that is not a Subsidiary of Finance LLC in the event of a sale of Finance LLC by Parent to a Successor Company), unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Parent shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with this Indenture. The Successor Company will succeed to, and be substituted for, the Parent or Finance LLC, as applicable, under this Indenture, the Guarantees and the Notes or the Parent’s Guarantee, as applicable, and, except in the case of a lease, the Parent or Finance LLC, as applicable, will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) any Restricted Subsidiary (other than the Issuers) may consolidate with, merge into or wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Parent or any Restricted Subsidiary (other than Finance Corp.); and
(2) the Parent or Finance LLC may merge with an Affiliate of the Parent solely for the purpose of reorganizing the Parent or Finance LLC in a state or commonwealth of the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Parent and its Restricted Subsidiaries is not increased thereby.
(b) Finance Corp. may not consolidate or merge with or into or wind up into (whether or not Finance Corp. is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(1) Finance Corp. is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than Finance Corp.) or the Person to whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Restricted Subsidiary of the Parent and a corporation organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor”);
(2) the Successor, if other than Finance Corp., expressly assumes all the obligations of Finance Corp. under this Indenture and the Notes pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists (including that the Successor shall be in compliance with Section 4.19 hereof).
(4) if Finance Corp. is not the Successor, each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(5) the Parent shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation sale, assignment, transfer, lease, conveyance or transfer other disposition and such supplemental indentures, if any, indenture(s) comply with this Indenture.
(b) . The Successor Company will succeed to, and be substituted for for, Finance Corp. under this Indenture and the Company Notes, and, except in the case of a lease, Finance Corp. will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing,
foregoing clause (1) any Restricted Subsidiary that is not a Subsidiary Guarantor 3), Finance Corp. may consolidate or amalgamate with or merge into or transfer wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company or any Restricted Subsidiary,Finance LLC provided that Finance LLC is, at such time, a corporation.
(2c) any Subject to certain limitations described in this Indenture governing release of a Guarantee by a Subsidiary Guarantor, no Subsidiary Guarantor may will, and the Parent will not permit any such Subsidiary Guarantor to, consolidate or amalgamate merge with or merge into or transfer wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or part substantially all of its properties and assets or assets, in one or more related transactions, to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,any Person unless:
(1) (A) such Subsidiary Guarantor is the Company may merge with an Affiliate surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the laws of the Company solely for jurisdiction of organization of such Subsidiary Guarantor, as the purpose case may be, or the laws of reincorporating the Company in the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof so long (such Subsidiary Guarantor or such Person, as the amount of Indebtedness of case may be, being herein called the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.“Successor Person”);
Appears in 4 contracts
Samples: Indenture (OUTFRONT Media Inc.), Indenture (OUTFRONT Media Inc.), Indenture (OUTFRONT Media Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may shall not consolidate or merge with or into or wind up into (whether or not the Company is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation merger or merger wind-up (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person Successor Company is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under this Indenture and the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter periodmost recently ended Test Period,
(A) the Successor Company or the Company Company, as applicable, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in Section 4.09(a), or
(B) the Fixed Charge Coverage Ratio for the Successor Company or the Company, as applicable, and the Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company and the Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1Section 5.01(c) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for for, the Company, as the case may be, under this Indenture, and the Notes and the Company will automatically be released and discharged from its obligations under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding clauses (3) through (6) of Section 5.01(a) (which shall not apply to the foregoingfollowing),
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,; and
(2) any Subsidiary Guarantor the Company may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company Company, as the case may be, solely for the purpose of reincorporating the Company in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its the Restricted Subsidiaries is not materially increased thereby; and.
(2c) Holdings may Subject to certain limitations described in this Indenture governing release of a Guarantee upon the sale, disposition or transfer of a Guarantor, no Guarantor shall, and the Company shall not permit any Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not the Company; provided that if Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person (other than the Company has or another Guarantor or a new direct holding company parent following 100% Non-Guarantor Pledgee) unless:
(1) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation merger or consolidation that guarantees wind-up (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the Senior Credit Facilities, such parent company will, within 30 days laws of the jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes on United States, any state thereof, the same terms District of Columbia, or any territory thereof (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 4 contracts
Samples: Indenture (LPL Financial Holdings Inc.), Indenture (LPL Financial Holdings Inc.), Indenture (LPL Financial Holdings Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may shall not consolidate or merge with or into or wind up into (whether or not the Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) either: (x) the Company is the surviving Person Person; or (y) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person organized or existing under the laws of the jurisdiction of organization of the Company or the laws of the Republic of Singapore or of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after giving effect to such transaction, no Default or Event of Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Successor Company, the Company and its Restricted Subsidiaries would be greater than the Fixed Charge Coverage such Ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(5) each U.S. Issuer and Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described set forth above, in which case clause (1) of Section 5.01(b5.01(c)(1)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee obligations under this Indenture and the Notes or Guarantee, as the case may be, shall apply to such Person’s obligations under this Indenture, the Notes and the Security DocumentsRegistration Rights Agreement;
(6) if the merging corporation is organized and existing under the laws of the Republic of Singapore and the Successor Company is organized and existing under the laws of the United States of America, any state thereof, the District of Columbia or any territory thereof or if the merging corporation is organized and existing under the laws of the United States of America, any state thereof, the District of Columbia or any territory thereof and the Successor Company is organized and existing under the laws of the Republic of Singapore, the Company shall have delivered to the Trustee an Opinion of Counsel that the holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the transaction and will be taxed for U.S. federal income tax purposes on the same amounts and at the same times as would have been the case if the transaction had not occurred;
(7) in the event that the Successor Company is organized and existing under the laws of a jurisdiction other than the merging corporation’s jurisdiction and an opinion is not delivered pursuant to clause (6) above, the Successor Company shall agree to withhold any taxes, duties, assessments or similar charges that arise as a consequence of such consolidation, merger or sale with respect to the payment of principal, premium or interest on the Notes or Guarantees and to pay such additional amounts as may be necessary to ensure that the net amounts receivable by holders of the Notes after any such withholding or deduction will equal the respective amounts of principal, premium and interest which would have been receivable in respect of the Notes in the absence of such consolidation, merger or sale, to the extent such additional amounts would be required by and subject to the terms (including all relevant exceptions) contained in Section 4.17 hereof; and
(6) 8) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for the Company Company, as the case may be, under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor, as applicable. Notwithstanding clauses (3) and (4) of Section 5.01(a5.01 (a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 4 contracts
Samples: Indenture (Avago Technologies Manufacturing (Singapore) Pte. Ltd.), Indenture (Avago Technologies LTD), Indenture (Avago Technologies LTD)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, any member state of the European Union on January 1, 2014, Canada or any province of Canada, Norway, Switzerland, Bermuda or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under this Indenture and the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments and the performance of the covenants and obligations of the Issuer under the Collateral Documents relating to the Notes and shall cause such amendments, supplements, or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by or transferred to the Successor Company, together with such financing statements or 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;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestTest set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Company and the Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b5.01(e)(1)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company Issuer under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor, as applicable. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) any Restricted Subsidiary may consolidate with or merge into or transfer all or part of its properties and assets to the Company Issuer, and
(2) the Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Issuer in a State of the United States, the District of Columbia Columbia, any member state of the European Union on January 1, 2014, Canada or any province of Canada, Norway or Switzerland, Bermuda or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.
(c) The Company may not consolidate, amalgamate or merge with or into or wind up into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) the Company is the surviving corporation or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the jurisdiction of organization of the Company or the laws of the United States, any state thereof, the District of Columbia, any member state of the European Union on January 1, 2014, Canada or any province of Canada, Norway, Switzerland, Bermuda or any territory thereof (such Person, as the case may be, being herein called the “Successor Guarantor”);
(2) the Successor Guarantor, if other than the Company, expressly assumes all the obligations of the Company under this Indenture and the Notes pursuant to supplemental indentures or other documents or instruments and the performance of the covenants and obligations of the Company under the Collateral Documents relating to the Notes and shall cause such amendments, supplements, or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by or transferred to the Successor Guarantor, together with such financing statements or 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;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Guarantor or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Successor Guarantor or the Company, as applicable, and the Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(25) Holdings the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(d) The Successor Guarantor, if other than the Company, will succeed to, and be substituted for the Company under this Indenture, the Guarantees and the Notes, as applicable. Notwithstanding the clauses (3) and (4) of Section 5.01 (c) hereof,
(1) any Restricted Subsidiary may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company; provided that if , and
(2) the Company has a new direct holding company parent following may amalgamate or merge with its Affiliate solely for the purpose of reincorporating the Company in another jurisdiction (regardless of clause (1) of paragraph (c) above) so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby and so long as the surviving entity (if not the Company) assumes all of the Company’s obligations under this Indenture, the Notes and its Guarantee in connection with such reincorporation.
(e) Subject to Section 10.06 hereof, no Guarantor (other than the Company, subject to Section 5.01(c) above) will, and the Company will not permit any such Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not the Issuer or such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation, amalgamation or consolidation that guarantees merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the Senior Credit Facilities, such parent company will, within 30 days laws of the jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes United States, any state thereof, the District of Columbia, any member state of the European Union on January 1, 2014, Canada or any province of Canada, Norway, Switzerland, Bermuda or any territory thereof (such Person being herein called the same terms as Holdings.“Successor Person”);
Appears in 3 contracts
Samples: Indenture (Freescale Semiconductor, Ltd.), Indenture (NXP Semiconductors N.V.), First Supplemental Indenture (Freescale Semiconductor, Ltd.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, any member state of the European Union on January 1, 2014, Canada or any province of Canada, Norway, Switzerland, Bermuda or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under this Indenture and the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments and the performance of the covenants and obligations of the Issuer under the Collateral Documents relating to the Notes and shall cause such amendments, supplements, or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by or transferred to the Successor Company, together with such financing statements or 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;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestTest set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Company and the Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause Section 5.01(e)(1) (1) of Section 5.01(bB) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company Issuer under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor, as applicable. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) any Restricted Subsidiary may consolidate with or merge into or transfer all or part of its properties and assets to the Company Issuer, and
(2) the Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Issuer in a State of the United States, the District of Columbia Columbia, any member state of the European Union on January 1, 2014, Canada or any province of Canada, Norway or Switzerland, Bermuda or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.
(c) The Company may not consolidate, amalgamate or merge with or into or wind up into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) the Company is the surviving corporation or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the jurisdiction of organization of the Company or the laws of the United States, any state thereof, the District of Columbia, any member state of the European Union on January 1, 2014, Canada or any province of Canada, Norway, Switzerland, Bermuda or any territory thereof (such Person, as the case may be, being herein called the “Successor Guarantor”);
(2) the Successor Guarantor, if other than the Company, expressly assumes all the obligations of the Company under this Indenture and the Notes pursuant to supplemental indentures or other documents or instruments and the performance of the covenants and obligations of the Company under the Collateral Documents relating to the Notes and shall cause such amendments, supplements, or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by or transferred to the Successor Guarantor, together with such financing statements or 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;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Guarantor or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Successor Guarantor or the Company, as applicable, and the Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(25) Holdings the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(d) The Successor Guarantor, if other than the Company, will succeed to, and be substituted for the Company under this Indenture, the Guarantees and the Notes, as applicable. Notwithstanding the clauses (3) and (4) of Section 5.01(c) hereof,
(1) any Restricted Subsidiary may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company; provided that if , and
(2) the Company has a new direct holding company parent following may amalgamate or merge with its Affiliate solely for the purpose of reincorporating the Company in another jurisdiction (regardless of clause (1) of paragraph (c) above) so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby and so long as the surviving entity (if not the Company) assumes all of the Company’s obligations under this Indenture, the Notes and its Guarantee in connection with such reincorporation.
(e) Subject to Section 10.06 hereof, no Guarantor (other than the Company, subject to Section 5.01(c) above) will, and the Company will not permit any such Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not the Issuer or such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation, amalgamation or consolidation that guarantees merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the Senior Credit Facilities, such parent company will, within 30 days laws of the jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes United States, any state thereof, the District of Columbia, any member state of the European Union on January 1, 2014, Canada or any province of Canada, Norway, Switzerland, Bermuda or any territory thereof (such Person being herein called the same terms as Holdings.“Successor Person”);
Appears in 3 contracts
Samples: Indenture (Freescale Semiconductor, Ltd.), Indenture (NXP Semiconductors N.V.), First Supplemental Indenture (Freescale Semiconductor, Ltd.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) (A) the Company Issuer is the surviving Person or (B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the CompanyIssuer or the Co-Issuer, as the case may be) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been mademade (such Person being herein called the “Successor Company”), (1) expressly assumes all of the obligations of the Issuer under this Indenture and the applicable Security Documents and (2) is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporationthereof;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3ii) immediately after such transaction, no Event of Default exists;
(4iii) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,:
(A) the Successor Company Issuer or the Company Successor Company, as applicable, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, Section 4.09(a) hereof; or
(B) either (x) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries or the Successor Company and its Restricted Subsidiaries, as applicable, would be equal to or greater than the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries immediately prior to such transaction or (y) the Consolidated Net Debt Ratio for the Issuer and its Restricted Subsidiaries or the Successor Company and its Restricted Subsidiaries, as applicable, would be equal to or less than the Consolidated Net Debt Ratio for the Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6iv) the Issuer or, if applicable, the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.; and
(b) The Successor Company will shall succeed to, and be substituted for for, the Company Issuer under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding , as applicable, and the foregoing,Issuer will automatically be released and discharged from its obligations under this Indenture, the Guarantees and the Notes, as applicable.
(1c) any Restricted Subsidiary that is not a Subsidiary Guarantor Notwithstanding clauses (ii) and (iii) of Section 5.01(a) hereof:
(i) the Issuer may consolidate or amalgamate with or merge with or into or transfer all or part of its properties and assets to Holdings, the Co-Issuer or a Subsidiary Guarantor;
(ii) the Issuer or the Co-Issuer may consolidate or amalgamate with or merge with or into or transfer all or part of their properties and assets to a Guarantor;
(iii) any Restricted Subsidiary (other than the Co-Issuer) may consolidate or amalgamate with or merge with or into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to Issuer, the Company Co-Issuer or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3iv) the Company may transfer all Issuer or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Co-Issuer may merge with an Affiliate of the Company Issuer or the Co-Issuer solely for the purpose of reincorporating reorganizing the Company Issuer in any other jurisdiction or for the purpose of reorganizing the Issuer or the Co-Issuer in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2d) Holdings The Co-Issuer may not consolidate or amalgamate merge with or merge into or wind up into (whether or not the Company; provided that if Co-Issuer is the Company has a new direct holding company parent following surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(i) (A) the Co-Issuer is the surviving Person or (B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer or the Co-Issuer, as the case may be) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made (such Person being herein called the “Successor Co-Issuer”), (1) expressly assumes all of the obligations of the Issuer under this Indenture and the Notes pursuant to supplemental indentures or other applicable documents or instruments or (2) at least one obligor on the Notes is a corporation organized or existing under the laws of the jurisdiction of organization of the United States, any state thereof, the District of Columbia, or any territory thereof;
(ii) immediately after such transaction, no Event of Default exists; and
(iii) the Co-Issuer or, if applicable, the Successor Co-Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with this Indenture; and
(iv) The Successor Co-Issuer shall succeed to, and be substituted for, the Co-Issuer under this Indenture, the Guarantees and the Notes, as applicable, and the Co-Issuer will automatically be released and discharged from its obligations under this Indenture, the Guarantees and the Notes, as applicable.
(e) Holdings may not consolidate or merge with or into or wind up into (whether or not Holdings is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(i) (A) Holdings is the surviving Person or (B) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made (such Person being herein called the “Successor Parent”), expressly assumes all of the obligations of Holdings under this Indenture and the Notes pursuant to supplemental indentures and is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof;
(ii) immediately after such transaction, no Event of Default exists; and
(iii) Holdings or, if applicable, the Successor Parent shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with this Indenture; and
(iv) The Successor Parent shall succeed to, and be substituted for, Holdings under this Indenture, the Guarantees and the Notes, as applicable, and Holdings will automatically be released and discharged from its obligations under this Indenture, the Guarantees and the Notes, as applicable.
(f) Subject to Section 10.06 hereof, no Subsidiary Guarantor shall, and the Issuer shall not permit any Subsidiary Guarantor to, consolidate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(i) (A) (1) such Subsidiary Guarantor is the surviving Person or (2) the Person formed by or surviving any such consolidation that guarantees or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made (such Person being herein called the Senior Credit Facilities, such parent company will, within 30 days “Successor Person”) expressly assumes all the obligations of such guarantee, become a guarantor of Subsidiary Guarantor under this Indenture and the Notes on the same terms as Holdings.applicable Security Documents and such Subsidiary Guarantor’s related Guarantee pursuant to supplemental indentures or other applicable documents or instruments;
Appears in 3 contracts
Samples: Indenture (Clarios International Inc.), Indenture (Clarios International Inc.), Indenture (Clarios International Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Borrower shall not consolidate consolidate, merge or merge amalgamate with or into or wind up into (whether or not the Company Borrower is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company Borrower is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, if other than the Company, Company expressly assumes all the obligations of the Company Borrower under the Notes this Agreement and the Security other Loan Documents pursuant to supplemental indentures joinders or other documents or instrumentsinstruments in form reasonably satisfactory to the Administrative Agent;
(3iii) immediately after such transaction, no Default exists;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
, (A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in the Section 6.01(a), or
or (B) the Fixed Charge Coverage Ratio for the Company Borrower (or the Successor Company, as applicable) and the Restricted Subsidiaries on a consolidated basis would be greater than the Fixed Charge Coverage Ratio for the Company Borrower and the Restricted Subsidiaries on a consolidated basis immediately prior to such transaction;
(5v) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and[Intentionally Omitted];
(6vi) the Company Borrower shall have delivered to the Trustee Administrative Agent an Officer’s Certificate and an Opinion of CounselCertificate, each stating that such consolidation, mergeramalgamation, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.Agreement;
(bvii) to the extent any assets of the Person that is merged, amalgamated or consolidated with or into the Successor Company are assets of the type that would constitute Collateral under the Security Documents, the Successor Company will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required by this Agreement or any of the Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by this Agreement and the Security Documents; and
(viii) the Collateral owned by or transferred to the Successor Company shall: (A) continue to constitute Collateral under the Loan Documents, (B) be subject to the Lien in favor of the Collateral Agent for the benefit of the Bank Secured Parties and (C) not be subject to any Lien other than Permitted Liens and other Liens permitted under Section 6.02. The Successor Company will succeed to, and be substituted for the Company Borrower under this Indenture and the NotesLoan Documents. Notwithstanding the foregoing,
foregoing clauses (1iii) and (iv), (A) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company Borrower or any Restricted Subsidiary,
; and (2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3B) the Company Borrower may transfer all consolidate, amalgamate or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company Borrower solely for the purpose of reincorporating the Company Borrower in another state in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Borrower and its the Restricted Subsidiaries is not increased thereby; and.
(2b) Holdings may consolidate No Subsidiary Guarantor will, and the Borrower will not permit any such Subsidiary Guarantor to, consolidate, amalgamate or amalgamate merge with or merge into or wind up into (whether or not such Subsidiary Guarantor is the Company; provided that if surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(i) (A) such Subsidiary Guarantor is the Company has a new direct holding company parent following surviving Person or the Person formed by or surviving any such consolidation, amalgamation or consolidation merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under (I) the laws of the jurisdiction of organization of such Subsidiary Guarantor or (II) the laws of the United States, any state thereof, the District of Columbia or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”); (B) the Successor Subsidiary Guarantor, if other than such Subsidiary Guarantor, expressly assumes all the obligations of such Subsidiary Guarantor under this Agreement and such Subsidiary Guarantor’s related Guarantee and the Security Documents pursuant to documents or instruments in form reasonably satisfactory to the Administrative Agent; (C) immediately after such transaction, no Default exists; (D) the Borrower shall have delivered to the Administrative Agent an Officer’s Certificate, stating that guarantees such consolidation, amalgamation, merger or transfer and such supplemental indentures, if any, comply with this Agreement; (E) to the Senior Credit Facilitiesextent any assets of the Person that is merged, amalgamated or consolidated with or into the Successor Subsidiary Guarantor are assets of the type that would constitute Collateral under the Security Documents, the Successor Subsidiary Guarantor will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required by the Loan Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the Loan Documents; and (F) the Collateral owned by or transferred to the Successor Subsidiary Guarantor shall: (I) continue to constitute Collateral under the Loan Documents, (II) be subject to the Lien in favor of the Collateral Agent for the benefit of the Bank Secured Parties and (III) not be subject to any Lien other than Permitted Liens and other Liens permitted under Section 6.02; or
(ii) the transaction is made in compliance with Section 6.03.
(c) Subject to the provisions of this Agreement, the Successor Subsidiary Guarantor will succeed to, and be substituted for, such parent company willSubsidiary Guarantor under the Loan Documents. Notwithstanding the foregoing, within 30 days any such Subsidiary Guarantor may (i) merge into or transfer all or part of such guarantee, become a guarantor its properties and assets to another Subsidiary Guarantor or the Borrower or (ii) merge with an Affiliate of the Notes on Borrower solely for the same terms purpose of reincorporating or reorganizing such Subsidiary Guarantor in the United States, any state thereof, the District of Columbia or any territory thereof so long as Holdingsthe amount of Indebtedness of the Borrower and the Restricted Subsidiaries is not increased thereby.
Appears in 3 contracts
Samples: Revolving Credit Agreement (Community Choice Financial Inc.), Revolving Credit Agreement (Reliant Software, Inc.), Revolving Credit Agreement (Community Choice Financial Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or nor may the Issuer sell, assign, transfer, lease, convey or otherwise dispose of assets or properties that in either case constitute all or substantially all of its consolidated the properties or assets of the Issuer and its Subsidiaries which are Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Issuer or such Person, as the case may be, being herein called the “Successor CompanyIssuer”); provided that in the case where the surviving Person Successor Issuer is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor CompanyIssuer, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes Notes, this Indenture and the applicable Security Documents Documents, pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestSection 4.09(a) hereof, or
(B) either (i) the Consolidated Leverage Ratio would not be higher, or (ii) the Fixed Charge Coverage Ratio for the Company would not be greater lower, in each case than the Fixed Charge Coverage Ratio for the Company it was immediately prior to such transactionacquisition or merger;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is (a) the other party to the transactions described above, in which case clause (11)(B) of Section 5.01(b5.01(c) hereof shall applyapply or (b) a Guarantor that will be released from its obligations under its Guarantee in connection with such transactions, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security Documents; andNotes;
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture; and
(7) to the extent any assets of the Person which is merged or consolidated with or into the Issuer are assets of the type which would constitute Collateral under the Security Documents, the Issuer or the Successor Issuer, as applicable, will take such action, if any, as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Security Documents in the manner and to the extent required in this Indenture or the applicable Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the applicable Security Documents.
(b) The Successor Company Issuer will succeed to, and be substituted for for, the Company Issuer under this Indenture and the Notes. Notwithstanding , as applicable, and the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of Issuer, will be automatically released from its properties obligations under this Indenture and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary GuarantorNotes. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Issuer or any Restricted Subsidiary may consolidate with or merge into or transfer all or part of its properties and assets to the Issuer or a Guarantor; and
(2) the Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating reorganizing the Company Issuer in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2c) Holdings may Subject to Section 10.06 hereof, no Guarantor will, and the Issuer will not permit any Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not the Company; provided that Issuer or such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is organized or existing under the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees laws of the Senior Credit Facilities, such parent company will, within 30 days jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes on United States, any state thereof, the same terms District of Columbia, or any territory thereof (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 3 contracts
Samples: Indenture (Clear Channel Outdoor Holdings, Inc.), Indenture (Clear Channel Outdoor Holdings, Inc.), Indenture (Clear Channel Outdoor Holdings, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuer shall not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated the properties or assets taken as of the Issuer and its Subsidiaries on a wholeconsolidated basis, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person corporation organized or existing under the laws of the United StatesStates of America, any state thereof, the District of Columbia, or any territory thereof (the Issuer or such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under this Indenture and the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Company Successor Company, the Issuer and the Restricted Subsidiaries on a consolidated basis would be greater than the Fixed Charge Coverage Ratio such ratio for the Company Issuer and the Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b5.01(c)(1)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture. Notwithstanding anything to the contrary herein, the disposition of a Designated Business pursuant to Section 4.07(b)(18) or Section 4.10 shall not be deemed to be a sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Issuer and its Subsidiaries on a consolidated basis.
(b) The Successor Company will shall succeed to, and be substituted for for, the Company Issuer under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor, as applicable. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,:
(1) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to, the Company Issuer, and
(2) the Issuer may merge with an Affiliate of the Company Issuer incorporated solely for the purpose of reincorporating the Company Issuer in another State of the United States, States of America or the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its the Restricted Subsidiaries is not increased thereby; and.
(2c) Holdings may Subject to certain limitations described in this Indenture governing release of a Guarantee upon the sale, disposition or transfer of a Guarantor, each Guarantor shall not, and the Issuer shall not permit any Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not such Guarantor is the Company; provided that surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(1) (A) such Guarantor is the surviving entity or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor laws of the Notes on United States of America, any state thereof, the same terms District of Columbia, or any territory thereof (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 3 contracts
Samples: Indenture (Aramark), Indenture (Aramark), Indenture (Aramark)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Borrower shall not consolidate or merge with or into or wind up into (whether or not the Company Borrower is the surviving Personentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company Borrower is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyBorrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person corporation organized or existing under the laws of the United StatesStates of America, any state thereof, the District of Columbia, or any territory thereof (the Borrower or such Person, as the case may be, being herein called the “Successor CompanyBorrower”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor CompanyBorrower, if other than the CompanyBorrower, expressly assumes all the obligations of the Company Borrower under the Notes this Agreement and the Security other Loan Documents pursuant to supplemental indentures supplements to the Loan Documents or other documents or instrumentsinstruments in form reasonably satisfactory to the Administrative Agent;
(3iii) immediately after such transaction, no Default exists;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactionstransaction, as if such transactions transaction had occurred at the beginning of the applicable four-quarter period,
, (A) the Successor Company or the Company Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
Ratio test set forth in Section 6.01(a) or (B) the Fixed Charge Coverage Ratio for the Company Successor Borrower and the Subsidiaries on a consolidated basis would be greater than the Fixed Charge Coverage Ratio such ratio for the Company Borrower and the Subsidiaries immediately prior to such transaction;
(5v) each Loan Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, above (in which case clause (1i)(B) of paragraph (c) of this Section 5.01(b6.03 or clause (ii) hereof of paragraph (e) of this Section 6.03, as applicable, shall apply, ) shall have by supplemental indenture supplement to the Loan Documents confirmed that its Guarantee guarantee of the Obligations shall apply to such Person’s obligations under this Indenture, the Notes Loan Documents and the Security DocumentsLoans; and
(6vi) the Company Borrower shall have delivered to the Trustee Administrative Agent an Officer’s Officers’ Certificate and an Opinion opinion of Counselcounsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indenturessupplements to the Loan Documents, if any, comply with this IndentureAgreement and the other Loan Documents.
(b) The Successor Company will Borrower shall succeed to, and be substituted for for, the Company Borrower under this Indenture Agreement and the Notesother Loan Documents and, except in the case of a lease transaction, the predecessor Borrower will be released from its obligations hereunder and thereunder. Notwithstanding the foregoing,
clauses (1iii) and (iv) of paragraph (a) of this Section 6.03, (i) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or with, merge into or transfer all or part of its properties and assets to to, the Company or any Restricted Subsidiary,
Borrower, and (2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3ii) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Borrower may merge with an Affiliate of the Company Borrower incorporated solely for the purpose of reincorporating the Company Borrower in another state of the United States, the District States of Columbia or any territory thereof America so long as the amount of Indebtedness of the Company Borrower and its Restricted the Subsidiaries is not increased thereby; and.
(2c) Holdings may Subject to Section 10.12, no Subsidiary Guarantor shall, and the Borrower shall not permit any Subsidiary Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not such Subsidiary Guarantor is the Company; provided that surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) (A) such Subsidiary Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor laws of the Notes on United States of America, any state thereof, the same terms District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as Holdingsthe case may be, being herein called the “Successor Person”).
Appears in 3 contracts
Samples: Term Loan Credit Agreement (TMS International Corp.), Term Loan Credit Agreement (TMS International Corp.), Term Loan Credit Agreement (Tube City IMS CORP)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the assets of the Issuer and its consolidated properties or assets Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or the Person to which whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership (including a limited partnership), trust, limited liability company or similar entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia, Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under this Indenture and the Notes and the Security Documents pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company Issuer, as applicable, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestConsolidated Net Leverage Ratio test set forth in Section 4.10(a) hereof, or
(B) the Fixed Charge Coverage Consolidated Net Leverage Ratio for the Successor Company or the Issuer, as applicable, and its Restricted Subsidiaries would be greater less than the Fixed Charge Coverage Ratio or equal to such ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5) if the Issuer is not the Successor Company, each Subsidiary Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation sale, assignment, transfer, lease, conveyance or transfer other disposition and such supplemental indentures, if any, comply with this Indenture.
(b) . The Successor Company will succeed to, and be substituted for for, the Company Issuer under this Indenture and the Notes and, except in the case of a lease, the Issuer will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) any Restricted Subsidiary may consolidate with, merge into or wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company Issuer or any Restricted Subsidiary; and
(2) the Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating reorganizing the Company Issuer in a state or commonwealth of the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2b) Holdings may Subject to certain limitations described in this Indenture governing release of a Guarantee by a Subsidiary Guarantor, no Subsidiary Guarantor will, and the Issuer will not permit any such Subsidiary Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not such Subsidiary Guarantor is the Company; provided that if surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days assets of such guaranteeSubsidiary Guarantor and its Subsidiaries, become taken as a guarantor whole, in one or more related transactions, to any Person unless:
(1) (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the laws of the Notes on jurisdiction of organization of such Subsidiary Guarantor, as the same terms case may be, or the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof (such Subsidiary Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 3 contracts
Samples: Indenture (CBS Radio Inc.), Indenture (CBS Radio Inc.), Indenture (CBS Corp)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuer shall not consolidate consolidate, merge or merge amalgamate with or into or wind up into (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company The Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person Successor Company is not a corporation, a co-obligor of the Notes is shall be a corporation;
(2) the Successor Company, if other than the Company, Company expressly assumes all the obligations of the Company Issuer under the Notes and this Indenture, the Security Documents and the Notes pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in Section 4.09(a), or
(B) the Fixed Charge Coverage Ratio for the Company Issuer (or the Successor Company, as applicable) and the Restricted Subsidiaries on a consolidated basis would be greater than the Fixed Charge Coverage Ratio for the Company Issuer and the Restricted Subsidiaries on a consolidated basis immediately prior to such transaction;
(5) each Subsidiary Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1Section 5.01(c) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security Documents; andNotes;
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, mergeramalgamation, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture;
(7) to the extent any assets of the Person that is merged, amalgamated or consolidated with or into the Successor Company are assets of the type that would constitute Collateral under the Security Documents, the Successor Company 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 by this Indenture or any of the Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by this Indenture and the Security Documents; and
(8) the Collateral owned by or transferred to the Successor Company shall: (a) continue to constitute Collateral under this Indenture and the Security Documents, (b) be subject to the Lien in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Notes and (c) not be subject to any Lien other than Permitted Liens and other Liens permitted under Section 4.12.
(b) The Successor Company will succeed to, Notwithstanding clauses (3) and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing(4) of Section 5.01(a),
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company Issuer or any Restricted Subsidiary,; and
(2) any Subsidiary Guarantor the Issuer may consolidate consolidate, amalgamate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Issuer in another state in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its the Restricted Subsidiaries is not increased thereby; and.
(2c) Holdings may consolidate Subject to Section 10.06, no Subsidiary Guarantor shall, and the Issuer shall not permit any such Subsidiary Guarantor to, consolidate, amalgamate or amalgamate merge with or merge into or wind up into (whether or not such Subsidiary Guarantor is the Company; provided that if surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Subsidiary Guarantor is the Company has a new direct holding company parent following surviving Person or the Person formed by or surviving any such consolidation, amalgamation or consolidation that guarantees merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under (i) the Senior Credit Facilities, such parent company will, within 30 days laws of the jurisdiction of organization of such guarantee, become a guarantor Subsidiary Guarantor or (ii) the laws of the Notes on United States, any state thereof, the same terms District of Columbia or any territory thereof (such Subsidiary Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Subsidiary Guarantor”);
Appears in 3 contracts
Samples: Indenture (Reliant Software, Inc.), Indenture (Reliant Software, Inc.), Indenture (Community Choice Financial Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuer shall not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or nor shall the Issuer sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated the properties or assets of the Issuer and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to (X) any Person (other than Holdings) unless:
(1) the Company Issuer is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Issuer or such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person Successor Company is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under this Indenture, the Notes and the Security Documents pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestConsolidated Leverage Ratio test set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Consolidated Leverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater equal to or less than the Fixed Charge Coverage such Consolidated Leverage Ratio for the Company immediately prior to such transactionconsolidation or merger;
(5) each Restricted Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (11)(B) of Section 5.01(b5.01(c) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee and security interest under the Security Documents shall apply to such Person’s obligations under this Indenture, the Guarantee, the Notes and the Security Documents; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture; or (Y) Holdings.
(b) The Successor Company will shall succeed to, and be substituted for for, the Company Issuer under this Indenture Indenture, the Notes and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary GuarantorSecurity Documents, as applicable. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 3 contracts
Samples: Indenture (iHeartCommunications, Inc.), Indenture (Clear Channel Communications Inc), Indenture (Clear Channel Communications Inc)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may not consolidate or merge with or into or wind up into (whether or not the Company is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactions, to any Person unless:
(1i) the Company is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Company or such Person, as the case may be, being herein called the “Successor Company”);
(ii) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under this Indenture and the Notes pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction, as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction) no Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either (A) the Successor Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first sentence of Section 4.03 or (B) the Leverage Ratio for the Successor Company and its Restricted Subsidiaries would be less than or equal to such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to the Successor Company’s obligations under this Indenture and the Notes; and
(vi) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. The Successor Company will succeed to, and be substituted for, the Company under this Indenture and the Notes. Notwithstanding clauses (iii) and (iv) above, (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary; and (b) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another state of the United States so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.
(b) Subject to Section 11.02(b) hereof, each Guarantor shall not, and the Company shall not permit a Guarantor to, consolidate or merge with or into or wind up into (whether or not such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Guarantor or such Person, as the case may be, being herein called the “Successor CompanyGuarantor”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, Guarantor (if other than the Company, such Guarantor) expressly assumes all the obligations of the Company such Guarantor under the Notes this Indenture and the Security Documents such Guarantor’s Guarantee pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4iii) immediately after giving pro forma effect to such transaction (and treating any related financing transactions, Indebtedness which becomes an obligation of the Successor Guarantor or any of its Subsidiaries as if a result of such transactions had occurred transaction as having been Incurred by the Successor Guarantor or such Subsidiary at the beginning time of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) no Default or Event of Section 5.01(b) hereof shall apply, Default shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes occurred and the Security Documentsbe continuing; and
(6iv) the Company Guarantor shall have delivered or caused to be delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, indenture (if any, ) comply with this Indenture.
(b) The . Subject to the limitations set forth in this Indenture, the Successor Company will Guarantor shall succeed to, and be substituted for the Company for, such Guarantor under this Indenture and the Notessuch Guarantor’s Guarantee. Notwithstanding the foregoing,
clause (1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4iii) of this Section 5.01(a) hereof,
(1) the Company 5.01(b), a Guarantor may merge with an Affiliate of the Company incorporated solely for the purpose of reincorporating the Company such Guarantor in the United States, the District of Columbia or any territory thereof another jurisdiction so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries Guarantor is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 3 contracts
Samples: Indenture (Brindlee Mountain Telephone Co), Indenture (Otelco Inc.), Indenture (Otelco Telecommunications LLC)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuer shall not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation wind-up or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person corporation organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes Notes, this Indenture and the Security Documents Documents, to the extent the Issuer is a party thereto, pursuant to a supplemental indentures indenture or other documents document or instrumentsinstrument in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactionstransactions (including, without limitation, any transaction the proceeds of which are applied to reduce the Indebtedness of the Successor Company or the Issuer, as the case may be), as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to clause (i) of the Fixed Charge Coverage TestRatio test set forth in Section 4.09(a) hereof, or
(B) the such Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater than the Fixed Charge Coverage Ratio such ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (11)(B) of Section 5.01(b5.01(d) hereof shall apply, shall have by a supplemental indenture confirmed that its Guarantee and any Security Documents to which it is a party shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, mergerwind-up, amalgamation merger or transfer and such supplemental indenturesindenture, if any, comply with this Indenture and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture shall comply with the applicable provisions of this Indenture; provided, that for the purposes of this Section 5.01 only, neither (A) the first to occur of a Permitted Asset Transfer or a TCEH Transfer (excluding a Permitted Asset Transfer consisting of a merger of EFIH with and into the Issuer for the purpose of determining the first to occur of a Permitted Asset Transfer or a TCEH Transfer) nor (B) a transaction meeting the requirements of the proviso to clause (3) under the definition of “Change of Control” shall be deemed to be a sale, assignment, transfer, conveyance or other disposition of all or substantially all of the properties or assets of the Issuer and its Subsidiaries under this Indenture. For the avoidance of doubt, (1) the Issuer may therefore consummate the first to occur of a Permitted Asset Transfer made in accordance with Section 4.16 hereof and a TCEH Transfer made in accordance with Section 4.17 hereof, in either case, without complying with this Section 5.01 (excluding a Permitted Asset Transfer consisting of a merger of EFIH with and into the Issuer for the purpose of determining the first to occur of a Permitted Asset Transfer or a TCEH Transfer), (2) the Issuer or any of its Restricted Subsidiaries may consummate a transaction meeting the requirements of the proviso to clause (3) under the definition of “Change of Control” without complying with this Section 5.01 and (3) the determination in the preceding proviso shall not affect the determination of what constitutes all or substantially all the assets of the Issuer and its Subsidiaries under any other agreement to which the Issuer is a party.
(b) The Successor Company will succeed to, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) any Restricted Subsidiary (other than EFIH) may consolidate with or merge into or transfer all or part of its properties and assets to the Company Issuer, and
(2) the Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Issuer in a State of the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2c) Holdings Notwithstanding the foregoing, EFIH may merge with and into the Issuer in a Permitted Asset Transfer made in accordance with Section 4.16 hereof.
(d) Except in the case of a Permitted Asset Transfer made in accordance with Section 4.16 hereof, no Guarantor shall, and the Issuer shall not permit any Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not the Company; provided that if Issuer or the Company has a new direct holding company parent following Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation, amalgamation wind-up or consolidation that guarantees merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, limited liability corporation or trust organized or existing under the Senior Credit Facilities, such parent company will, within 30 days laws of the jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes on United States, any state thereof, the same terms District of Columbia, or any territory thereof (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 3 contracts
Samples: Indenture (Energy Future Intermediate Holding CO LLC), Indenture (EFIH Finance Inc.), Indenture (Energy Future Intermediate Holding CO LLC)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments and the performance of the covenants and obligations of the Issuer under the Collateral Documents relating to the Notes and shall cause such amendments, supplements, or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by or transferred to the Successor Company, together with such financing statements or 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;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestTest set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Ratio for Holdings III and the Company Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Holdings III and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b5.01(e)(1)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company Issuer under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor, as applicable. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) any Restricted Subsidiary may consolidate with or merge into or transfer all or part of its properties and assets to the Company Issuer, and
(2) the Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Issuer in a State of the United States, the District of Columbia or any territory thereof States so long as the amount of Indebtedness of the Company Holdings III and its Restricted Subsidiaries is not increased thereby.
(c) Holdings III may not consolidate, amalgamate or merge with or into or wind up into (whether or not Holdings III is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) Holdings III is the surviving corporation or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Holdings III) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the jurisdiction of organization of Holdings III or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Guarantor”);
(2) the Successor Guarantor, if other than Holdings III, expressly assumes all the obligations of Holdings III under the Notes pursuant to supplemental indentures or other documents or instruments and the performance of the covenants and obligations of Holdings III under the Collateral Documents relating to the Notes and shall cause such amendments, supplements, or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by or transferred to the Successor Guarantor, together with such financing statements or 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;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Guarantor or Holdings III would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Successor Guarantor or Holdings III, as applicable, and the Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for Holdings III and its Restricted Subsidiaries immediately prior to such transaction; and
(25) Holdings III shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(d) The Successor Guarantor, if other than Holdings III, will succeed to, and be substituted for Holdings III under this Indenture, the Guarantees and the Notes, as applicable. Notwithstanding the clauses (3) and (4) of Section 5.01(c) hereof,
(1) any Restricted Subsidiary may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to Holdings III, and
(2) Holdings III may amalgamate or merge with its Affiliate solely for the Company; provided that purpose of reincorporating Holdings III in another jurisdiction (regardless of clause (1) of paragraph (c) above) so long as the amount of Indebtedness of Holdings III and its Restricted Subsidiaries is not increased thereby and so long as the surviving entity (if not Holdings III) assumes all of Holdings III’s obligations under this Indenture, the Company has a new direct holding company parent following Notes and its Guarantee in connection with such reincorporation.
(e) Subject to Section 10.06 hereof, no Guarantor (other than Holdings I, Holdings II and Holdings III, subject to Section 5.01(c) above) will, and Holdings III will not permit any such Guarantor (other than Holdings I and Holdings II) to, consolidate, amalgamate or merge with or into or wind up into (whether or not Holdings III, the Issuer or such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation, amalgamation or consolidation that guarantees merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the Senior Credit Facilities, such parent company will, within 30 days laws of the jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes on United States, any state thereof, the same terms as Holdings.District of Columbia, or any territory thereof (such Person being herein called the “Successor Person”);
Appears in 3 contracts
Samples: Indenture (Freescale Semiconductor Inc), Indenture (Freescale Semiconductor Holdings I, Ltd.), Indenture (Freescale Semiconductor Holdings I, Ltd.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) the Issuer is the surviving Person or the Person formed by or surviving any such consolidation, merger or wind-up (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof, any member state of the European Union or the United Kingdom (such Person, as the case may be, being herein called the “Successor Company”);
(2) the Successor Company, if other than the Issuer, expressly assumes all the obligations of the Issuer under this Indenture and the Notes pursuant to supplemental indentures or other documents or instruments;
(3) immediately after such transaction, no Default or Event of Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing or debt reduction transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Successor Company and the Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Issuer and the Restricted Subsidiaries immediately prior to such transaction;
(5) each Subsidiary Guarantor, unless it is the other party to the transactions described above, in which case Section 5.01(c)(1)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(6) the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, wind up, sale, assignment, transfer, lease, conveyance or other disposition and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company, if not the Issuer, will succeed to, and be substituted for, the Issuer under this Indenture and the Notes and in such event the Issuer will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) any Restricted Subsidiary may consolidate or merge with or into or wind up into or transfer all or part of its properties and assets to the Issuer or any Subsidiary Guarantor, and
(2) the Issuer may merge with an Affiliate of the Issuer solely for the purpose of reorganizing the Issuer in another state of the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not materially increased thereby.
(c) Subject to Section 10.06 hereof, no Subsidiary Guarantor will, and the Issuer will not permit any Subsidiary Guarantor to, consolidate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation merger or merger wind-up (if other than the Companysuch Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, Person being herein called the “Successor CompanyPerson”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 3 contracts
Samples: Indenture (Harsco Corp), Indenture (Catalent, Inc.), Indenture (Catalent, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuer will not consolidate or merge merger with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated the properties or assets of the Issuer and its Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1i) the Company Issuer is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3iii) immediately after such transaction, no Default exists;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A1) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in Section 4.07(a), or
(B2) the Fixed Charge Coverage Ratio for the Company Successor Company, the Issuer and its Restricted Subsidiaries would be greater than the Fixed Charge Coverage Ratio or equal to such ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5v) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1i)(b) of Section 5.01(b5.01(c) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6vi) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company Issuer, as the case may be, under this Indenture, the Guarantees and the Notes, as applicable. Upon such substitution, except in the case of a sale, conveyance, transfer or disposition of less than all of its assets, the Issuer will be released from its obligations under this Indenture and the Notes. Notwithstanding the foregoingforegoing clauses (iii) and (iv),
(1i) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); Issuer, and
(3ii) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Issuer may merge with an Affiliate of the Company Issuer, as the case may be, solely for the purpose of reincorporating the Company Issuer in any state of the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2c) Holdings may Subject to the provisions in Section 10.09 governing the release of a Guarantee upon the sale, disposition or transfer of a Guarantor, no Guarantor will, and the Issuer will not permit any Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not the Company; provided that Issuer or Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(i) (a) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability corporation or trust organized or existing under the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees laws of the Senior Credit Facilities, such parent company will, within 30 days jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes on United States, any state thereof, the same terms District of Columbia, or any territory thereof (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 3 contracts
Samples: Indenture (Nuance Communications, Inc.), Indenture (Nuance Communications, Inc.), Indenture (Nuance Communications, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Borrower will not consolidate or merge with or into or wind up into (whether or not the Company Borrower is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated the properties or assets of the Borrower and its Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1a) the Company Borrower is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyBorrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2b) the Successor Company, if other than the CompanyBorrower, expressly assumes all the obligations of the Company Borrower under all Loan Documents in form reasonably satisfactory to the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsAdministrative Agent;
(3c) immediately after such transaction, no Default or Event of Default exists;
(4d) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(Ai) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio of the Successor Company, the Borrower and its Subsidiaries would be at least 2.00 to 1.00, or
(Bii) the Fixed Charge Coverage Ratio for the Company Successor Company, the Borrower and its Subsidiaries would be greater than the Fixed Charge Coverage Ratio or equal to such ratio for the Company Borrower and its Subsidiaries immediately prior to such transaction;; and
(5e) each GuarantorSubsidiary Loan Party, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1b) of Section 5.01(b) hereof the second succeeding paragraph shall apply, shall have by supplemental indenture confirmed that its Guarantee and grant of security (other than during a Collateral Suspension Period) shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered Loan Documents pursuant to instruments or documents reasonably satisfactory to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) Administrative Agent. The Successor Company will succeed to, and be substituted for the Company Borrower, as the case may be, under this Indenture and the NotesLoan Documents, as applicable. Upon such substitution, except in the case of a sale, conveyance transfer or disposition of less than all of its assets, the Borrower will be released from its obligations under the Loan Documents, if applicable. Notwithstanding the foregoingforegoing clauses (c) and (d),
(1a) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); Borrower, and
(3b) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Borrower may merge with an Affiliate of the Company Borrower, as the case may be, solely for the purpose of reincorporating the Company Borrower in any state of the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Borrower and its Restricted Subsidiaries is not increased thereby; and. Subject to the provisions of Section 9.18, no Subsidiary Loan Party will, and the Borrower will not permit any Subsidiary Loan Party to, consolidate or merge with or into or wind up into (whether or not the Borrower or such Subsidiary Loan Party is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(2a) Holdings may consolidate (i) such Subsidiary Loan Party is the surviving corporation or amalgamate with the Person formed by or merge into surviving any such consolidation or merger (if other than such Subsidiary Loan Party) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability corporation or trust organized or existing under the Company; provided that if laws of the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days jurisdiction of organization of such guaranteeSubsidiary Loan Party, become a guarantor as the case may be, or the laws of the Notes on United States, any state thereof, the same terms District of Columbia, or any territory thereof (such Subsidiary Loan Party or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 3 contracts
Samples: Revolving Credit Agreement (Nuance Communications, Inc.), Revolving Credit Agreement (Nuance Communications, Inc.), Revolving Credit Agreement (Nuance Communications, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated and its Subsidiaries’ properties or assets assets, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or the Person to which whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia, or any territory thereof Columbia (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under this Indenture and the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(Aa) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in Section 4.09(a), or
(Bb) the Fixed Charge Coverage Ratio for the Successor Company or the Issuer and its Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio such ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;; and
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of CounselCounsel (on which the Trustee may conclusively rely), each stating that such consolidation, merger, amalgamation wind up, sale, assignment, transfer, lease, conveyance or transfer other disposition and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for for, the Company Issuer under this Indenture, the Guarantees and the Notes, as applicable, and except in the case of a lease, the Issuer will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of subsection (a) of this Section 5.01(a) hereof,5.01:
(1) any Restricted Subsidiary may consolidate with, merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company Issuer or any other Restricted Subsidiary; and
(2) the Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating reorganizing the Company Issuer in a State of the United States, States or the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2c) Holdings may Subject to Section 10.06, no Guarantor will, and the Issuer will not permit any such Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not the Company; provided that Issuer or such Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (a) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees laws of the Senior Credit Facilities, such parent company will, within 30 days jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes on United States, any State thereof or the same terms District of Columbia (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 2 contracts
Samples: Indenture (Hill-Rom Holdings, Inc.), Indenture (Hill-Rom Holdings, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (ai) The Company Borrower may not not, directly or indirectly: (1) consolidate or merge with or into or wind up into another Person (whether or not the Company Borrower is the surviving Personcorporation), ; or (2) sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of its consolidated the properties or assets the Borrower and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any another Person unless:
(1a) the Company Borrower is the surviving Person corporation; or (b) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyBorrower) or to which such sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition will have has been made, made is a Person corporation or limited liability company organized or existing under the laws of the United States, any state thereofof the United States, the District of Columbia, Columbia or any territory thereof (the Borrower or such Person, including the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2B) the Successor Company, Company (if other than the Company, expressly Borrower) assumes all the obligations of the Company Borrower under the Notes and the Security Documents this Agreement pursuant to supplemental indentures or other documents or instrumentsagreements reasonably satisfactory to the Administrative Agent;
(3C) immediately after such transaction, no Default or Event of Default exists;
(4D) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
period either (Ai) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
Ratio test set forth in the first paragraph of Section 6.03 hereof or (Bii) the Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Borrower and its Restricted Subsidiaries immediately prior to such transaction;; and
(5E) each Guarantor, unless Guarantor (except if it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (12) of Section 5.01(b) hereof above shall apply, ) shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this IndentureAgreement.
(bii) The Successor Company will succeed to, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
, clauses (13), (4) and (5) above will not be applicable to: (a) any Restricted Subsidiary that is not a consolidating with, merging into or selling, assigning, transferring, conveying, leasing or otherwise disposing of all or part of its properties and assets to the Borrower or to another Guarantor; (b) the Borrower merging with an Affiliate solely for the purpose of reincorporating the Borrower, as the case may be, in another jurisdiction; and (c) any Foreign Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to any other Foreign Subsidiary; provided that if the Company Foreign Subsidiary so consolidating, merging or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer transferring all or part of its properties and assets is a Foreign Subsidiary that is a Guarantor, such Foreign Subsidiary shall, substantially simultaneously with such merger, transfer or disposition, terminate its Guarantee and otherwise be in compliance with the terms of this Agreement.
(iii) For purposes of this Section 6.08, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Restricted Subsidiaries of the Borrower, which properties and assets, if held by the Borrower instead of such Restricted Subsidiaries, would constitute all or substantially all of the properties and assets of the Borrower on a consolidated basis, shall be deemed to be the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of the Borrower.
(iv) The predecessor company will be released from its obligations under this Agreement and the Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement, but, in the case of a lease of all or substantially all its assets, the predecessor company will not be released from the obligation to pay the principal of and interest on the Loans.
(v) In connection with any consolidation or merger or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Borrower contemplated by this Section 6.08, the Borrower shall expressly assume the obligations under this Agreement and shall execute and deliver to the Company Administrative Agent such documentation, in form and substance reasonably satisfactory to the Administrative Agent, evidencing such succession together with an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation or a Subsidiary Guarantor (merger or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer any sale, assignment, transfer, lease, conveyance or other disposition of all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate substantially all of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness assets of the Company Borrower contemplated by this Section 6.08 and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate such documentation in respect thereto complies with this Section 6.08 and that all conditions precedent herein provided for relating to such transaction or amalgamate transactions have been complied with or merge into and that such supplemental indenture constitutes the Company; provided that if the Company has a new direct holding company parent following such consolidationlegal, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor valid and binding obligation of the Notes on successor entity, subject to the same terms as Holdingscustomary exceptions.
Appears in 2 contracts
Samples: Senior Subordinated Bridge Loan Agreement (CDW Finance Corp), Senior Bridge Loan Agreement (CDW Finance Corp)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Neither Issuer nor Xxxxxxx XX may not consolidate or merge with or into or wind up into (whether or not such Person is the surviving Person), and Xxxxxxx XX may not sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Covenant Parties and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person (other than to give effect to the Connect Transactions) unless:
(i) such Issuer or Xxxxxxx XX, as applicable, is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Issuer or Xxxxxxx XX, as applicable) or the Person to whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made is organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (or, in the case of Xxxxxxx XX, an entity organized or existing under the laws of the Netherlands, United Kingdom, Switzerland or any member country of the European Union as of the Issue Date) (such Person, as the case may be, being herein called the “Successor Company”);
(ii) the Successor Company, if other than such Issuer or Xxxxxxx XX, as applicable, expressly assumes all the obligations of such Issuer under the Notes or Xxxxxxx XX under its related Guarantee, as applicable, pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction, no Default exists;
(iv) each Guarantor, unless it is the other party to the transactions described above, in which case Section 5.01(c)(ii) hereof shall apply, shall have by supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(v) the Issuers shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, winding-up, sale, assignment, transfer, lease, conveyance or other disposition and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company shall succeed to, and be substituted for such Issuer or Xxxxxxx XX, as applicable, as the case may be, under this Indenture, the Guarantee and the Notes, as applicable. Notwithstanding clause (iii) of Section 5.01(a) hereof,
(i) any Covenant Party or Restricted Subsidiary may consolidate or merge with or into or wind-up into or sell, assignment transfer, lease, convey or otherwise dispose of all or part of its properties and assets to an Issuer or Restricted Guarantor; and
(ii) an Issuer may merge with an Affiliate of such Issuer, as the case may be, solely for the purpose of reorganizing such Issuer in a State of the United States so long as the amount of Indebtedness of the Covenant Parties and the Restricted Subsidiaries is not increased thereby.
(c) Subject to certain limitations described in this Indenture governing release of a Guarantee thereunder upon the sale, disposition or transfer of a Guarantor, no Restricted Guarantor shall, and the Covenant Parties shall not permit any Restricted Guarantor to, consolidate or merge with or into or wind up into (whether or not an Issuer or Restricted Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person (other than to give effect to the Connect Transactions) unless:
(1i) the Company such Restricted Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Companysuch Restricted Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person organized or existing under the laws of the jurisdiction of organization of such Restricted Guarantor, as the case may be, or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof thereof, the Netherlands, the United Kingdom, Switzerland, any member state of the European Union as of the Issue Date or the jurisdiction of organization of any Restricted Guarantor (such Restricted Guarantor or such Person, as the case may be, being herein called the “Successor CompanyPerson”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor CompanyPerson, if other than the Companysuch Restricted Guarantor, expressly assumes all the obligations of the Company such Restricted Guarantor under the Notes this Indenture and the Security Documents such Restricted Guarantor’s related Guarantee pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3iii) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6iv) the Company Issuers shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(bd) The In the case of Section 5.01(c), the Successor Company will Person shall succeed to, and be substituted for the Company for, such Restricted Guarantor under this Indenture and the Notessuch Restricted Guarantor’s Guarantee thereunder. Notwithstanding the foregoing,
(1) , any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company another Restricted Guarantor or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as HoldingsIssuer.
Appears in 2 contracts
Samples: Indenture (Nielsen Holdings PLC), Indenture (Nielsen Holdings PLC)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither the Company nor the Issuer may not consolidate or merge with or into or wind up into (whether or not the Company or the Issuer, as the case may be, is the surviving Personcorporation), nor may the Company or the Issuer sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated the properties or assets of the Company or the Issuer, as the case may be, and its Subsidiaries which are Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company or the Issuer, as the case may be, is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyCompany or the Issuer, as the case may be) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Company, the Issuer or such Person, as the case may be, being herein called the “Successor Company”); ) : provided that in the case where the surviving Person Successor Company is not a corporation, a co-co- obligor of the 2017 B Notes is a corporation;
(2) the Successor Company, if other than the CompanyCompany or the Issuer, as the case may be, expressly assumes all the obligations of the Company or the Issuer, as the case may be, under the Notes and Company’s Guarantee or the Security Documents 2017 B Notes, as applicable, pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to each of the Fixed Charge Coverage Testratio tests set forth in Section 4.09(a) hereof, or
(B) (x) the Fixed Charge Coverage Consolidated Leverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater equal to or less than the Fixed Charge Coverage such Consolidated Leverage Ratio for the Company immediately prior to such transactionacquisition or merger and (y) the Senior Leverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or less than such Senior Leverage Ratio immediately prior to such acquisition or merger;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (11)(B) of Section 5.01(b5.01(c) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security Documents2017 B Notes; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for for, the Company or the Issuer, as the case may be, under this Indenture and the 2017 B Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor, as applicable. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company or any Restricted Subsidiary (other than the Issuer) may consolidate with or merge into or transfer all or part of its properties and assets to the Issuer or a Guarantor; and
(2) the Company or the Issuer may merge with an Affiliate of the Company or the Issuer, as the case may be, solely for the purpose of reincorporating reorganizing the Company or the Issuer, as the case may be, in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Company, the Issuer and its Restricted Subsidiaries is not increased thereby. Notwithstanding Sections 5.01(a) and 5.01(b), other than Section 5.01(a)(3) which shall be applicable, any Restricted Subsidiaries of the Issuer that are not Guarantors may consolidate or merge with or into or wind up into, and the Issuer or any of its Restricted Subsidiaries that are not Guarantors may sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of, or Equity Interests in, its Restricted Subsidiaries that are not Guarantors, taken as a whole, in one or more related transactions to any Person (such disposition, a “Foreign Disposition”); and
provided, however, that (1) such Foreign Disposition is made in compliance with Sections 4.10(a)(l) and 4.10(a)(2), (2) Holdings may if, on a pro forma basis, the Consolidated Leverage Ratio would be less than 6.0 to 1.0 and the Senior Leverage Ratio would be less than 3.0 to 1.0, then the Issuer shall apply the Net Proceeds of such Foreign Disposition in accordance with Section 4.10(b) or to make an Asset Sale Offer or otherwise in accordance with the this Indenture, and (3) if, on a pro forma basis, the Consolidated Leverage Ratio would be equal to or greater than 6.0 to 1.0 or the Senior Leverage Ratio would be equal to or greater than 3.0 to 1.0, then the Issuer shall make an offer to purchase all the outstanding 2017 B Notes at 100% of the principal amount thereof in a manner and time frame as would be required if such offer were a Change of Control Offer. If a Foreign Disposition does not constitute a disposition of all or substantially all of the properties or assets of the Issuer, this paragraph shall not be applicable.
(c) No Restricted Guarantor shall, and the Company shall not permit any Restricted Guarantor to, consolidate or amalgamate merge with or merge into the Company; provided that if or wind up into (whether or not the Company has a new direct holding company parent following or such consolidationRestricted Guarantor is the surviving corporation), amalgamation or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation that guarantees or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is organized or existing under the Senior Credit Facilities, such parent company will, within 30 days laws of the jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes on United States, any state thereof, the same terms District of Columbia, or any territory thereof (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”):
Appears in 2 contracts
Samples: Indenture (Clear Channel Outdoor Holdings, Inc.), Indenture (CC Media Holdings Inc)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may not consolidate shall not, directly or indirectly: (1) consolidate, amalgamate or merge with or into or wind up into another Person (whether or not the Company is the surviving Person), ; or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any Person another Person, unless:
(1i) either: (a) the Company is the surviving Person Person; or (b) the Person (if other than the Company) formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have has been made, made (x) is a Person corporation, limited liability company, trust or limited partnership organized or existing under the laws of an Eligible Jurisdiction, and (y) assumes all the United States, any state thereof, obligations of the District of Columbia, or any territory thereof (such Person, as Company under this Agreement and the case may be, being herein called other Loan Documents pursuant to agreements reasonably satisfactory to the “Successor Company”)Administrative Agent; provided that in the case where the surviving Person is not a corporationcompany organized under the laws of the United States, any state thereof or the District of Columbia, a joint and several co-obligor borrower of the Notes Loans and other Obligations is a corporationcorporation organized under the laws of the United States, any state thereof or the District of Columbia;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3ii) immediately after giving effect to such transaction, no Default or Event of Default exists;; and
(4iii) immediately either (a) the Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than a Borrower), or to which such sale, assignment, transfer, conveyance or other disposition has been made, will, on the date of such transaction after giving pro forma effect to such transaction thereto and any related financing transactions, transactions as if such transactions the same had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would , be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
Ratio test set forth in Section 6.2 or (Bb) the Fixed Charge Coverage Ratio for the Company would or such surviving Person determined in accordance with Section 6.2(a) shall be greater than the Fixed Charge Coverage Ratio test for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor. In addition, unless it is a Subsidiary Guarantor that is the other party to the transactions described aboveCompany may not, directly or indirectly, lease all or substantially all of its properties or assets, in which case clause one or more related transactions, to any other Person; provided that the foregoing shall not prohibit the chartering out of Vessels in the ordinary course of business. For purposes of the foregoing, the transfer (1by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indentureall or substantially all of the properties or assets of one or more Restricted Subsidiaries, the Notes Equity Interests of which constitute all or substantially all of the properties and assets of the Security Documents; and
(6) Company, will be deemed to be the Company shall have delivered to transfer of all or substantially all of the Trustee an Officer’s Certificate properties and an Opinion assets of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenturethe Company.
(b) The Successor Company will succeed not permit any Guarantor to, directly or indirectly, consolidate, amalgamate or merge with or into another Person (whether or not the Company or such Guarantor is the surviving Person) unless:
(i) subject to the Guarantee release provisions described below, such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company or a Guarantor) expressly assumes all the obligations of such Guarantor under the Guarantee of such Guarantor, this Agreement and be substituted the other Loan Documents pursuant to agreements reasonably satisfactory to the Administrative Agent; and
(ii) immediately after such transaction, no Default or Event of Default exists.
(c) This Section 6.8 will not apply to a merger of the Company, a Guarantor or a Wholly Owned Restricted Subsidiary of such Person with an Affiliate solely for the Company under purpose, and with the effect, of reorganizing the Company, a Guarantor or a Wholly Owned Restricted Subsidiary, as the case may be, in an Eligible Jurisdiction. In addition, nothing in this Indenture and the Notes. Notwithstanding the foregoing,
(1) “Merger, Consolidation or Sale of Assets” will prohibit any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate from consolidating or amalgamate amalgamating with, merging with or merge into or transfer conveying, transferring or leasing, in one transaction or a series of transactions, all or part substantially all of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a another Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely reconstituting itself in another jurisdiction for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has reflagging a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdingsvessel.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Navios Maritime Partners L.P.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Borrower shall not consolidate or merge with or into or wind up into (whether or not the Company Borrower is the surviving Personentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company Borrower is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyBorrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person corporation organized or existing under the laws of the United StatesStates of America, any state thereof, the District of Columbia, or any territory thereof (the Borrower or such Person, as the case may be, being herein called the “Successor CompanyBorrower”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor CompanyBorrower, if other than the CompanyBorrower, expressly assumes all the obligations of the Company Borrower under the Notes this Agreement and the Security other Loan Documents pursuant to supplemental indentures supplements to the Loan Documents or other documents or instrumentsinstruments in form reasonably satisfactory to the Agent;
(3iii) immediately after such transaction, no Default exists;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactionstransaction, as if such transactions transaction had occurred at the beginning of the applicable four-quarter period,
, (A) the Successor Company or the Company Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
Ratio test set forth in Section 6.01(a) or (B) the Fixed Charge Coverage Ratio for the Company Successor Borrower and the Restricted Subsidiaries on a consolidated basis would be greater than the Fixed Charge Coverage Ratio such ratio for the Company Borrower and the Restricted Subsidiaries immediately prior to such transaction;
(5v) each Loan Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, above (in which case clause (1i)(B) of paragraph (c) of this Section 5.01(b6.03 or clause (ii) hereof of paragraph (e) of this Section 6.03, as applicable, shall apply, ) shall have by supplemental indenture supplement to the Loan Documents confirmed that its Guarantee guarantee of the Obligations shall apply to such Person’s obligations under this Indenture, the Notes Loan Documents and the Security DocumentsLoans; and
(6vi) the Company Borrower shall have delivered to the Trustee Agent an Officer’s Officers’ Certificate and an Opinion opinion of Counselcounsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indenturessupplements to the Loan Documents, if any, comply with this IndentureAgreement and the other Loan Documents.
(b) The Successor Company will Borrower shall succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents and, except in the case of a lease transaction, the predecessor Borrower will be released from its obligations hereunder and thereunder. Notwithstanding clauses (iii) and (iv) of paragraph (a) of this Section 6.03, (i) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to, the Borrower, and (ii) the Borrower may merge with an Affiliate of the Borrower incorporated solely for the Company under this Indenture purpose of reincorporating the Borrower in another state of the United States of America so long as the amount of Indebtedness of the Borrower and the NotesRestricted Subsidiaries is not increased thereby.
(c) Subject to Section 10.12, no Subsidiary Guarantor shall, and the Borrower shall not permit any Subsidiary Guarantor to, consolidate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) (A) such Subsidiary Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States of America, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Person”), (B) the Successor Person, if other than such Subsidiary Guarantor, expressly assumes all the obligations of such Subsidiary Guarantor under such Subsidiary Guarantor’s Loan Guaranty and the other Loan Documents, pursuant to a Joinder Agreement and supplements to the Loan Documents or other documents or instruments in form reasonably satisfactory to the Agent, (C) immediately after such transaction, no Default exists and (D) the Borrower shall have delivered to the Agent an Officers’ Certificate and an opinion of counsel, each stating that such consolidation, merger or transfer and such Joinder Agreement and supplements, if any, comply with this Agreement and the other Loan Documents; or
(ii) the transaction is made in compliance with Section 2.20.
(d) The Successor Person shall succeed to, and be substituted for, such Subsidiary Guarantor under such Subsidiary Guarantor’s Loan Guaranty and the other Loan Documents and, except in the case of a lease transaction, such Subsidiary Guarantor will be released from its obligations thereunder. Notwithstanding the foregoing,
(1) , any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to another Subsidiary Guarantor or the Company Borrower.
(e) Holdings will not consolidate or merge with or into or wind up into (whether or not Holdings is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless (i) Holdings is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States of America, any state thereof, the District of Columbia, or any Restricted Subsidiary,territory thereof (Holdings or such Person, as the case may be, being herein called the “Successor Holdings Guarantor”), (ii) the Successor Holdings Guarantor, if other than Holdings, expressly assumes all the obligations of Holdings under Holdings’ Loan Guaranty and the other Loan Documents, pursuant to a Joinder Agreement or other supplements or other documents or instruments in form reasonably satisfactory to the Agent, (iii) immediately after such transaction, no Event of Default or payment Default exists and (iv) the Borrower shall have delivered to the Agent an Officers’ Certificate and an opinion of counsel, each stating that such consolidation, merger or transfer and the Joinder Agreement and such supplements or other documents or instruments, if any, comply with this Agreement.
(2f) any Subsidiary The Successor Holdings Guarantor will succeed to, and be substituted for, Holdings under Holdings’ Loan Guaranty and the other Loan Documents and, except in the case of a lease transaction, the predecessor Holdings will be released from its obligations thereunder. Notwithstanding the foregoing, Holdings may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) Borrower, and (4) of Section 5.01(a) hereof,
(1) the Company Holdings may merge with an Affiliate of the Company Borrower incorporated solely for the purpose of reincorporating the Company Holdings in another state of the United States, the District States of Columbia or any territory thereof America so long as the amount of Indebtedness of Holdings, the Company Borrower and its the Restricted Subsidiaries is not increased thereby; and.
(2g) Holdings may consolidate Notwithstanding the foregoing, the Merger shall be permitted without compliance with this Section 6.03.
(h) For purposes of this Section 6.03, the sale, lease, conveyance, assignment, transfer or amalgamate with other disposition of all or merge into substantially all of the Company; provided that properties and assets of one or more subsidiaries of the Borrower or Holdings, as applicable, which properties and assets, if held by the Company has a new direct holding company parent following such consolidationBorrower or Holdings, amalgamation or consolidation that guarantees the Senior Credit Facilitiesas applicable, such parent company will, within 30 days instead of such guaranteesubsidiaries, become a guarantor would constitute all or substantially all of the Notes properties and assets of the Borrower and its subsidiaries on a consolidated basis or Holdings and its subsidiaries on a consolidated basis, as applicable, shall be deemed to be the same terms transfer of all or substantially all of the properties and assets of the Borrower or Holdings, as Holdingsapplicable.
Appears in 2 contracts
Samples: Credit Agreement (Neiman Marcus Group Inc), Credit Agreement (Neiman Marcus, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may will not consolidate with or merge with or into or wind up into (whether or not the Company is the surviving Personcorporation), or sell, assign, convey, transfer, lease, convey lease or otherwise dispose of all or substantially all of the assets of the Company and its consolidated properties or assets Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company is resulting, surviving or transferee Person (the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the “Successor Company”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person corporation or limited liability company organized or and existing under the laws of the United StatesStates of America, any state thereof, or territory thereof or the District of Columbia, or any territory thereof (and if such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person entity is not a corporation, a co-obligor of the Notes is a corporationcorporation organized or existing under such laws;
(2) the Successor Company, Company (if other than the Company, ) expressly assumes all of the obligations of the Company under the Notes and the Security Documents this Indenture pursuant to a supplemental indentures or other documents or instrumentsindenture;
(3) immediately after giving pro forma effect to such transaction, no Default existsor Event of Default shall have occurred and be continuing;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted able to incur Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, Section 4.09(a); or
(B) the Fixed Charge Consolidated Coverage Ratio for of the Successor Company and its Restricted Subsidiaries would be greater than the Fixed Charge Coverage Ratio such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(5) unless the Company is the Successor Company, each Guarantor, Guarantor (unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, ) shall have by supplemental indenture confirmed that its Note Guarantee shall apply to such PersonSuccessor Company’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Company shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation winding up or transfer disposition, and such supplemental indenturesindenture, if any, comply with this Indenture.
(b) The Subject to certain limitations, the Successor Company will succeed to, and be substituted for for, the Company under this Indenture Indenture, the Notes and the NotesNote Guarantees. Notwithstanding the foregoing,clauses (4) or (6) of Section 5.01(a):
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with, merge with or merge into or transfer all or part of its properties and assets to to, the Company or any other Restricted Subsidiary,;
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating or forming the Company in another state or territory of the United States, States of America or the District of Columbia or any territory thereof Columbia, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(23) Holdings any Non-Guarantor Subsidiary may consolidate or amalgamate with or merge into the Company; provided that if or transfer all or part of its properties and assets to, the Company has or a new direct holding company parent following Guarantor or to any other Non-Guarantor Subsidiary.
(c) The Company will not permit any Guarantor to consolidate with or merge with or into or wind up into (whether or not such consolidationGuarantor is the surviving corporation), amalgamation or consolidation that guarantees sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person (other than to the Senior Credit FacilitiesCompany or another Guarantor) unless:
(1) (A) if such entity remains a Guarantor, such parent company willthe resulting, within 30 days of such guarantee, become surviving or transferee Person (the “Successor Guarantor”) is a guarantor Person (other than an individual) organized and existing under the laws of the Notes on United States of America, any state or territory thereof or the same terms as Holdings.District of Columbia;
Appears in 2 contracts
Samples: Senior Notes Indenture (TTM Technologies Inc), Senior Notes Indenture (TTM Technologies Inc)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership, limited liability company or similar entity organized or existing under the laws of the jurisdiction of organization of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
, (Aa) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
Ratio test set forth in Section 4.09(a) hereof or (Bb) the Fixed Charge Coverage Ratio of the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b5.01(c)(1)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for the Company Issuer, as the case may be, under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor, as applicable. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) any Restricted Subsidiary may consolidate with or merge into or transfer all or part of its properties and assets to the Company Issuer or a Guarantor,
(2) the Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Issuer in a State of the United States, the District of Columbia or any territory thereof States so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; , and
(23) Holdings Xxxxxx International, Inc. may merge with a wholly owned Restricted Subsidiary of the Issuer solely for the purpose of converting to a limited liability company.
(c) Subject to certain limitations described in this Indenture governing the release of a Guarantee upon the sale, disposition or transfer of a Guarantor, no Guarantor shall, and the Issuer shall not permit any Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not the Company; provided that Issuer or Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability company or trust or similar entity organized or existing under the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees laws of the Senior Credit Facilities, such parent company will, within 30 days jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes on United States, any state thereof, the same terms District of Columbia, or any territory thereof (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 2 contracts
Samples: Indenture (INC Research Holdings, Inc.), Indenture (INC Research Holdings, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The From and after the Closing Date, neither the Issuer nor the Company may not will consolidate with or merge with or into or wind up into (whether or not the Company Issuer or the Company, as applicable, is the surviving Personcorporation), or sell, assign, convey, transfer, lease, convey lease or otherwise dispose of all or substantially all of the assets of the Company and its consolidated properties or assets Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company Issuer or the Company, as the case may be, is the surviving Person or the resulting, surviving or transferee Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company“Successor Entity”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person corporation or limited liability company organized or and existing under the laws of the United StatesStates of America, any state thereof, or territory thereof or the District of Columbia, or any territory thereof (such Person, as and if the case may be, being herein called Successor Entity of the “Successor Company”); provided that in the case where the surviving Person Issuer is not a corporation, a co-obligor of the Notes is a corporationcorporation organized or existing under such laws;
(2) the Successor Company, Entity (if other than the Issuer or, in the case of the Company, the Company) expressly assumes all of the obligations of the Company Issuer under the Notes and this Indenture, or of the Security Documents Company under this Indenture and the Note Guarantee of the Company, pursuant to a supplemental indentures indenture or other documents or instruments;
(3) immediately after giving pro forma effect to such transaction, no Event of Default existsshall have occurred and be continuing;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company Entity would be permitted able to incur Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, Section 4.09(a); or
(B) either (i) the Fixed Charge Consolidated Coverage Ratio of the Company and its Restricted Subsidiaries (taking into account the Successor Entity) would not be lower than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction or (ii) the Net Leverage Ratio of the Company and its Restricted Subsidiaries (taking into account the Successor Entity) would not be greater higher than the Fixed Charge Coverage Ratio such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;; and
(5) each Guarantorthe Issuer or the Company, unless it is a Subsidiary Guarantor that is the other party to the transactions described aboveas applicable, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation winding up or transfer disposition, and such supplemental indenturesindenture or other documents or instruments, if any, comply with this Indenture.
(b) The Subject to Sections 5.01(f) and 5.02, the Successor Company Entity will succeed to, and be substituted for for, the Company Issuer or the Company, as applicable under this Indenture and the Notes. Notwithstanding , and, in the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part case of its properties and assets to Company, the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part Note Guarantee of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary GuarantorCompany. Notwithstanding clauses (3) and or (4) of Section 5.01(a) hereof,
(1) ), the Issuer or the Company may consolidate with, merge with or into or wind up into an Affiliate of the Company solely for the purpose of reincorporating or forming the Company Issuer or the Company, as applicable, in another state or territory of the United States, States of America or the District of Columbia Columbia, or any territory thereof changing the legal form of the Issuer or the Company, as applicable, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.
(c) From and after the Closing Date, the Company will not permit any Subsidiary Guarantor to consolidate with or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving corporation), or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person (other than to the Company, the Issuer or another Subsidiary Guarantor) unless:
(A) the resulting, surviving or transferee Person (the “Successor Guarantor”) is a Person (other than an individual) organized and existing under the laws of the United States of America, any state or territory thereof or the District of Columbia;
(B) the Successor Guarantor, if other than such Guarantor, expressly assumes all the obligations of such Guarantor under this Indenture, the Notes and its Note Guarantee pursuant to a supplemental indenture or other documents or instruments;
(C) immediately after giving pro forma effect to such transaction, no Event of Default shall have occurred and be continuing; and
(2D) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following will have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation merger, winding up or consolidation disposition and such supplemental indenture or other documents or instruments, if any, comply with this Indenture; or
(2) in the event the transaction results in the release of the Subsidiary’s Note Guarantee under clause (1) of Section 10.06(a), the transaction is not prohibited by Section 4.16 (it being understood that guarantees only such portion of the Senior Credit FacilitiesNet Available Cash as is required to be applied on the date of such transaction in accordance with the terms of this Indenture needs to be applied in accordance therewith at such time).
(d) Subject to Sections 5.01(f) and 5.02, the Successor Guarantor will succeed to, and be substituted for, such parent company will, within 30 days Subsidiary Guarantor under this Indenture and the Note Guarantee of such guaranteeSubsidiary Guarantor. Notwithstanding Section 5.01(c), become (a) any Subsidiary Guarantor may (i) merge with or into or transfer all or part of its properties and assets to the Issuer, another Subsidiary Guarantor or the Company or merge with a guarantor Restricted Subsidiary of the Company, so long as the resulting entity is the Company or the Issuer or remains or becomes a Subsidiary Guarantor, (ii) merge with an Affiliate of the Company solely for the purpose of reincorporating or forming the Subsidiary Guarantor in another state or territory of the United States of America or the District of Columbia, or changing the legal form of the Subsidiary Guarantor, so long as Indebtedness is not Incurred in connection with such merger (unless otherwise permitted under this Indenture) or (iii) convert into a corporation, limited liability company or other corporate entity organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor and (b) any Non-Guarantor Restricted Subsidiary may consolidate with, merge with or into, wind up into or sell, assign, convey, transfer, lease or otherwise dispose of all or part of its properties and assets to the Issuer or a Guarantor.
(e) For purposes of this Section 5.01, the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Issuer or a Guarantor, as the case may be, which properties and assets, if held by the Issuer or such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Issuer or such Guarantor on a consolidated basis, will be deemed to be the disposition of all or substantially all of the properties and assets of the Issuer or such Guarantor, as applicable.
(f) The Issuer and a Guarantor, as the case may be, will be released from its obligations under this Indenture and the Notes and the Note Guarantee, as the case may be, and the Successor Entity and the Successor Guarantor, as the case may be, will succeed to, and be substituted for, and may exercise every right and power of, the Issuer or a Guarantor, as the case may be, under this Indenture, the Notes and such Note Guarantee; provided that, in the case of a lease of all or substantially all its assets, the Issuer will not be released from the obligation to pay the principal of and interest on the same terms as HoldingsNotes, and a Guarantor will not be released from its obligations under its Note Guarantee, solely by virtue of such transaction.
(g) Notwithstanding any other provision of this Article 5, this Article 5 will not apply to the Transactions.
Appears in 2 contracts
Samples: Senior Notes Indenture (Garden SpinCo Corp), Senior Notes Indenture (Neogen Corp)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Borrower shall not consolidate or merge with or into or wind up into (whether or not the Company Borrower is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactions, to any Person unless:
(1a) the Company Borrower is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyCompany Borrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Company Borrower or such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person ) and, if such entity is not a corporation, a co-obligor of the Notes Obligations is a corporationcorporation organized or existing under such laws;
(2b) the Successor Company, Company (if other than the Company, Company Borrower) expressly assumes all the obligations of the such Company under the Notes this Agreement and the Security other Loan Documents pursuant to supplemental indentures or other documents or instrumentswhich it is a party;
(3c) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction, ) no Default existsor Event of Default shall have occurred and be continuing;
(4d) immediately after giving pro forma effect to such transaction and any related financing transactionstransaction, as if such transactions transaction had occurred at the beginning of the applicable four-quarter period,, either:
(Ai) the Successor Company or the Company would be permitted to incur Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, Ratio test set forth in Section 6.1(a); or
(Bii) the Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would not be greater less than the Fixed Charge Coverage Ratio such ratio for the Company Borrower and its Restricted Subsidiaries immediately prior to such transaction;
(5e) if the Successor Company is an entity other than the Company Borrower, each Guarantor, Guarantor (unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture a Guarantor Joinder Agreement confirmed that its Guarantee shall apply to such Personthe Successor Company’s obligations under this Indenture, the Notes Agreement and the Security other Loan Documents; and
(6f) the Company Borrower shall have delivered to the Trustee Administrative Agent an Officer’s Certificate and an Opinion opinion of Counsel, each counsel (which may be subject to customary assumptions and exclusions) stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply complies with this Indenture.
(b) Agreement and the other Loan Documents. The Successor Company (if other than the Company Borrower) will succeed to, and be substituted for for, the Company Borrower under this Indenture Agreement and in such event the Company Borrower will automatically be released and discharged from its obligations under this Agreement and the Notesother Loan Documents. Notwithstanding clauses (c) and (d) of this Section 6.7, (A) the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor Company Borrower may consolidate or amalgamate with or with, merge into or transfer sell, assign, transfer, lease, convey or otherwise dispose (including in connection with a liquidation) of all or part of its properties and assets to the Company or any Restricted Subsidiary,
Subsidiary and (2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3B) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Borrower may merge or consolidate with an Affiliate of the Company incorporated or organized solely for the purpose of reincorporating or reorganizing the Company Borrower in another state of the United States, the District of Columbia or any territory thereof of the United States. No Guarantor will, and the Company Borrower will not permit any Guarantor to, consolidate or merge with or into or wind up into (whether or not such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose (including in connection with a liquidation) of all or substantially all of its properties or assets in one or more related transactions to, any Person (herein called the “Successor Guarantor”) unless (i) the surviving company (or company to which such assets are transferred) in such liquidation, merger, sale, transfer or other disposition is the Company Borrower or a Guarantor; or (ii):
(1) such sale or disposition or consolidation or merger is not in violation of Section 6.4;
(2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Guarantor or any of its Subsidiaries as a result of such transaction as having been Incurred by the Successor Guarantor or such Subsidiary at the time of such transaction) no Default or Event of Default shall have occurred and be continuing;
(3) the Successor Guarantor (if other than such Guarantor) shall have delivered or caused to be delivered to the Administrative Agent an Officer’s Certificate stating and an opinion of counsel (which may be subject to customary assumptions and exclusions) that such consolidation, merger or transfer complies with this Agreement; and
(4) the Successor Guarantor expressly assumes all the obligations of such Guarantor under this Agreement and the other Loan Documents, pursuant to a Guarantor Joinder Agreement. The Successor Guarantor will succeed to, and be substituted for, such Guarantor under this Agreement and such Guarantor’s Guarantee, and such Guarantor will automatically be released and discharged from its obligations under this Agreement and such Guarantor’s Guarantee. Notwithstanding the foregoing, (x) a Guarantor may merge or consolidate with an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing such Guarantor in another state of the United States, the District of Columbia or any territory of the United States, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries Guarantor is not increased thereby; and
, (2y) Holdings a Guarantor may merge or consolidate or amalgamate with or merge into the Company; provided that if transfer all or part of its properties or assets to another Guarantor or the Company has Borrower and (z) a new direct holding company parent following such consolidationGuarantor may convert into a corporation, amalgamation partnership, limited partnership, limited liability corporation or consolidation that guarantees trust organized or existing under the Senior Credit Facilities, such parent company will, within 30 days laws of the jurisdiction of organization of such guarantee, become a guarantor Guarantor or any of the Notes on the same terms as Holdingsjurisdictions set forth in clause (x) of this sentence.
Appears in 2 contracts
Samples: Amendment No. 1 (JELD-WEN Holding, Inc.), Term Loan Credit Agreement (JELD-WEN Holding, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may not Holdings shall not, directly or indirectly: (1) consolidate or merge with or into or wind up into another Person (whether or not the Company Holdings is the surviving Person), ) or (2) sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of its consolidated the properties or assets of Holdings and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person another Person, unless:
(1) the Company either: (a) Holdings is the surviving Person Person; or (b) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyHoldings) or to which such sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition will have has been made, made is a Person an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof a Permitted Jurisdiction (such Person, as the case may be, being herein called the “Successor CompanySurviving Entity”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, Surviving Entity (if other than Holdings) or the CompanyPerson to which such sale, expressly assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of the Company Holdings under the Notes Notes, this Indenture and the Security Documents Collateral Documents, pursuant to a supplemental indentures or indenture and/or other documents or instrumentsinstruments in form satisfactory to the Trustee and the Notes Collateral Agent;
(3) immediately after such transaction, no Default or Event of Default exists;,
(4) immediately Holdings or the Surviving Entity (if other than Holdings) would, on the date of such transaction after giving pro forma effect to such transaction and any related financing transactions, thereto as if such transactions the same had occurred at the beginning of the applicable four-quarter period,
period would either: (Aa) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
first paragraph of the covenant described under Section 4.09 or (Bb) the Fixed Charge Coverage Ratio for Holdings or the Company Surviving Entity and the Restricted Subsidiaries would be greater than or equal to such ratio for Holdings and the Fixed Charge Coverage Ratio for the Company Restricted Subsidiaries immediately prior to such transaction;
(5) each GuarantorHoldings shall deliver, unless it is a Subsidiary Guarantor that is the other party or cause to the transactions described abovebe delivered, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating to the effect that such consolidation, merger, amalgamation sale, conveyance, assignment, transfer, lease or transfer and such supplemental indentures, if any, comply other disposition complies with the requirements of this Indenture;
(6) to the extent any assets of the Person which is merged, consolidated or amalgamated with or into the Surviving Entity are assets of the type which would constitute Collateral under the Collateral Documents, the Surviving Entity will take such actions as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Collateral Documents in the manner and to the extent required in this Indenture or any of the Collateral Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the Collateral Documents; and
(7) the Collateral owned by or transferred to the Surviving Entity shall: (a) continue to constitute Collateral under this Indenture and the Collateral Documents, (b) be subject to the Lien in favor of the Notes Collateral Agent for the benefit of the Trustee and the holders of the Notes, and (c) not be subject to any Lien other than Permitted Liens.
(b) The Successor Company will succeed toThis Section 5.01 shall not apply to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Issuer and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary Guarantor that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses Clauses (3) and (4) of Section 5.01(a) hereof shall not apply to (a) any merger or consolidation of any Restricted Subsidiary with or into Holdings or (b) a merger or consolidation of Holdings with or into an Affiliate for the purpose of reincorporating Parent Entity in another jurisdiction or organization (in a Permitted Jurisdiction) or to effect a name change or change in corporate form.
(c) All references to Holdings in this Indenture shall be deemed to include any successor entity that assumes all of the obligations of Holdings under the Notes in a transaction that complies with Section 5.01 hereof,. Following any such assumption (except in the case of a lease), Holdings or such predecessor company, as the case may be, shall be automatically released and discharged from its obligations under this Indenture and the Notes. The successor entity shall succeed to, and be substituted for, and may receive every right and power of, Holdings under this Indenture and the Notes but in the case of a lease of all or substantially all its assets, the predecessor entity shall not be released from its obligations under this Indenture or the Notes.
(d) The Issuer shall not: (1) consolidate with or merge with or into any Person; or (2) sell, convey, transfer or dispose of, all or substantially all its assets, in one transaction or a series of related transactions, to any Person; or (3) permit any Person to merge with or into the Issuer, unless:
(1) either (x) the Issuer is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Issuer under the Notes, this Indenture and the Collateral Documents, pursuant to a supplemental indenture and/or other documents or instruments in form satisfactory to the Trustee and the Notes Collateral Agent;
(2) the resulting, surviving or transferee Person (if other than the Issuer) expressly assumes all of the obligations of the Issuer under the Notes this Indenture and the Collateral Documents, pursuant to a supplemental indenture and/or other documents or instruments in form satisfactory to the Trustee and the Notes Collateral Agent, and such Person (if other than the Issuer) is an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia;
(3) immediately after giving effect to the transaction, no Default or Event of Default has occurred and is continuing;
(4) the transaction constitutes a sale or other disposition (including by way of consolidation or merger) of the Issuer or the sale or disposition of all or substantially all the assets of the Issuer otherwise permitted by this Indenture; and
(5) the Issuer shall deliver, or cause to be delivered, to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger, sale, conveyance, assignment, transfer, lease or other disposition complies with the requirements of this Indenture.
(e) No Guarantor that is a Restricted Subsidiary shall: (1) consolidate with or merge with or into any Person; (2) sell, convey, transfer or dispose of, all or substantially all its assets, in one transaction or a series of related transactions, to any Person; or (3) permit any Person to merge with or into such Guarantor, unless:
(1) the Company may merge with an Affiliate of other Person is the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia Issuer or any territory thereof so long as Restricted Subsidiary that is a Guarantor or becomes a Guarantor that is a Restricted Subsidiary concurrently with the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased therebytransaction; andor
(2) Holdings may consolidate (1) either (x) a Guarantor that is a Restricted Subsidiary is the continuing Person or amalgamate with (y) the resulting, surviving or merge into transferee Person expressly assumes all of the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days obligations of such guarantee, become a guarantor Guarantor under its Guarantee of the Notes on and all obligations of such Guarantor under the same terms as HoldingsCollateral Documents; and (2) immediately after giving effect to the transaction, no Default or Event of Default has occurred and is continuing; or
(3) the transaction constitutes a sale or other disposition (including by way of consolidation or merger) of the Guarantor or the sale or disposition of all or substantially all the assets of the Guarantor (in each case other than to the Issuer or a Restricted Subsidiary) otherwise permitted by this Indenture.
Appears in 2 contracts
Samples: Indenture (Cushman & Wakefield PLC), Indenture (Cushman & Wakefield PLC)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company On and following the Effective Date, the Issuer and the Co-Issuer each may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or sell, assign, transfer, lease, convey convey, consummate a Division as the Dividing Person or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) (a) in the Company case of a Division where the Issuer or the Co-Issuer, as applicable, is the Dividing Person, either (x) all Division Successors shall become co-issuers of the Notes (this clause (x), a “Permitted Co-Issuer Division”) or (y) the Division, as to any Division Successor that will not be a co-issuer, is permitted by Section 4.10 hereof and (b) the Issuer or the Co-Issuer, as applicable, is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation merger, Division or merger wind-up (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof thereof, any member state of the European Union, Switzerland, or the United Kingdom (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer or the Co-Issuer, as applicable, expressly assumes all the obligations of the Company Issuer or the Co-Issuer, as applicable, under this Indenture and the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3) immediately after such transaction, no Default or Event of Default exists;
(4) only in the case of the Issuer, immediately after giving pro forma effect to such transaction and any related financing or debt reduction transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestTest set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Successor Company and the Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Issuer and the Restricted Subsidiaries immediately prior to such transaction;
(5) each Subsidiary Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b5.01(c)(1)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, Indenture and the Notes and the Security DocumentsSuccessor Company shall, as applicable, have executed and delivered a supplement or joinder to the applicable Collateral Documents or new Collateral Documents and taken all actions required thereunder to perfect the Liens created thereunder with the priority required under this Indenture; and
(6) the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation wind up, sale, assignment, transfer, lease, conveyance or transfer other disposition and such supplemental indentures, if any, comply with this Indenture; provided that the Trustee shall be under no obligation to inform Holders of the occurrence of any such consolidation, merger, wind-up, sale, assignment, transfer, lease, conveyance or other disposition.
(b) The Successor Company Company, if not the Issuer or the Co-Issuer, as applicable, will succeed to, and be substituted for for, the Company Issuer or the Co-Issuer, as applicable, under this Indenture and the Notes and in such event the Issuer or the Co-Issuer, as applicable, will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) any Restricted Subsidiary may consolidate or merge with or into or wind up into or transfer all or part of its properties and assets to the Company Issuer or any Subsidiary Guarantor, and
(2) the Issuer or the Co-Issuer, as applicable, may merge with an Affiliate of the Company thereof solely for the purpose of reincorporating reorganizing the Company Issuer or the Co-Issuer, as applicable, in another state of the United States, the District of Columbia or any territory thereof (in the case of the Issuer), or in any member state of the European Union, Switzerland, or the United Kingdom (in either case), so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not materially increased thereby; and.
(2c) Holdings may Subject to Section 10.06 hereof, on and following the Effective Date, no Subsidiary Guarantor will, and the Issuer will not permit any Subsidiary Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not such Subsidiary Guarantor is the Company; provided that if surviving Person), or sell, assign, transfer, lease, convey, consummate a Division as the Company has a new direct holding company parent following Dividing Person, or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation merger, Division, or consolidation that guarantees wind-up (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the Senior Credit Facilities, such parent company will, within 30 days laws of the jurisdiction of organization of such guarantee, become a guarantor Subsidiary Guarantor or the laws of the Notes on United States, any state thereof, the same terms as Holdings.District of Columbia, or any territory thereof, any member state of the European Union, Switzerland, or the United Kingdom (such Person being herein called the “Successor Person”);
Appears in 2 contracts
Samples: Indenture (Organon & Co.), Indenture (Organon & Co.)
Merger, Consolidation or Sale of All or Substantially All Assets. Except as otherwise provided in Section 11.6 hereof, the Corporation shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (a1) The Company may not merge, consolidate or merge amalgamate with or into another Person or wind up into (whether or not the Company is the surviving Person), or 2) sell, assign, transfer, lease, convey transfer or otherwise dispose of all or substantially all of its consolidated the properties or assets of the Corporation and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless:
(1) either: (a) the Corporation or the Issuer is the surviving Person; or (b) the Person formed by or surviving any such merger, consolidation or amalgamation (if other than the Corporation or the Issuer) or to which such sale, assignment, transfer or other disposition has been made is organized or existing under the laws of Canada or any province or territory thereof;
(2) the Person formed by or surviving any such merger, consolidation or amalgamation (if other than the Corporation or the Issuer) or the Person to which such sale, assignment, transfer or other disposition has been made assumes all the obligations of the Corporation or the Issuer, as the case may be, under the Debentures, this Indenture and pursuant to agreements reasonably satisfactory to the Debenture Trustees;
(3) immediately after such transaction, no Default or Event of Default exists;
(4) the Corporation, the Issuer or the Person formed by or surviving any such merger, consolidation or amalgamation (if other than the Corporation or the Issuer), or to which such sale, assignment, transfer, or other disposition has been made would have, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the Corporation’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of such transaction, a Consolidated Total Debt to Consolidated EBITDA Ratio not greater than 2.0 to 1.0; and
(5) the Corporation shall have delivered, or caused to be delivered, to the Debenture Trustees (i) an Officer’s Certificate stating that all conditions set forth in clauses (1) to (4) of this Section 8.13 have been satisfied and (ii) an opinion of counsel stating that the Corporation or the Issuer is the surviving Person, or that the Person formed by or surviving any such merger, consolidation or amalgamation (if other than the Corporation or the Issuer) or to which such sale, assignment, transfer or other disposition has been made is organized or existing under the laws of Canada or any province or territory thereof. In addition, the Corporation shall not, directly or indirectly, lease all or substantially all of the properties and assets of the Corporation and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 2 contracts
Samples: Trust Indenture (Wall2wall Media Inc.), Trust Indenture (Wall2wall Media Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Neither Parent nor the Issuer may not consolidate or merge with or into or wind up into (whether or not Parent or the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) Parent or the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than Parent or the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia, or any territory thereof Columbia (such Person, as the case may be, being herein called the “Successor Company”); provided provided, that in the case of a transaction involving the Issuer where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, if other than Parent or the CompanyIssuer, expressly assumes all the obligations of Parent or the Company Issuer under Parent’s Guarantee or the Notes and the Security Documents Notes, as applicable, pursuant to supplemental indentures or other documents or instruments;
(3iii) immediately after such transaction, no Event of Default exists;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) Parent or the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for Parent or the Company Successor Company, as applicable, and its Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Parent and its Restricted Subsidiaries immediately prior to such transaction;
(5v) in the case of any such transaction involving the Issuer, each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b5.01(c)(i)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6vi) the Company Parent shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for the Company Issuer under this Indenture Indenture, the Guarantees and the Notes, as applicable. Notwithstanding the foregoingclauses (iii), (iv) and (vi) of Section 5.01(a) hereof (which do not apply to transactions referred to in this clause (b)),
(1i) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge with or into or transfer all or part of its properties and assets to Parent or the Company Issuer or any other Restricted Subsidiary,, and
(2ii) Parent and the Restricted Subsidiaries may complete any Subsidiary Guarantor Permitted Tax Restructuring. Notwithstanding clause (iii) of Section 5.01(a) hereof (which does not apply to the transactions referred to in this sentence), Parent and the Issuer may consolidate or amalgamate otherwise combine with or merge into an Affiliate of Parent or the Issuer for the purpose of changing the legal domicile of Parent or the Issuer, reincorporating Parent or the Issuer in another jurisdiction, or changing the legal form of Parent or the Issuer. The foregoing provisions (other than the requirements of clause (iii) of Section 5.01(a) hereof) shall not apply to the creation of a new Domestic Subsidiary as a Restricted Subsidiary.
(c) Subject to Section 10.06 hereof, no Guarantor (other than Parent which shall be subject to the provisions set forth in Section 5.01(a) hereof) shall, and Parent shall not permit any such Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(i) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the laws of the jurisdiction of organization of such Guarantor, as applicable, or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such surviving Guarantor or such Person, as the case may be, being herein called the “Successor Person”); (B) the Successor Person, if other than such Guarantor, expressly assumes all the obligations of such Guarantor under this Indenture and such Guarantor’s related Guarantee pursuant to supplemental indentures or other documents or instruments; (C) immediately after such transaction, no Event of Default exists; and (D) Parent shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture;
(ii) the transaction is made in compliance with Section 4.10(a) hereof; or
(iii) in the case of assets comprised of Equity Interests of Subsidiaries that are not Guarantors, such Equity Interests are sold, assigned, transferred, leased, conveyed or otherwise disposed of to one or more Restricted Subsidiaries.
(d) Subject to Section 10.06 hereof, the Successor Person shall succeed to, and be substituted for, such Guarantor under this Indenture and such Guarantor’s Guarantee. Notwithstanding the foregoing, any Guarantor (other than Parent) may (1) merge or consolidate with or into, wind up into or transfer all or part of its properties and assets to another Guarantor or the Company or a Subsidiary Guarantor Issuer, (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(32) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Guarantor in the United States, any state thereof or the District of Columbia Columbia, (3) convert into a corporation, partnership, limited partnership, limited liability company or any territory thereof so long as trust organized or existing under the amount of Indebtedness laws of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days jurisdiction of organization of such guarantee, become a guarantor Guarantor or (4) liquidate or dissolve or change its legal form if Parent determines in good faith that such action is in the best interests of the Notes on the same terms as HoldingsParent.
Appears in 2 contracts
Samples: Indenture (Prestige Consumer Healthcare Inc.), Indenture (Prestige Consumer Healthcare Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United StatesStates of America, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3iii) immediately after such transaction, no Default exists;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,:
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, ; or
(B) the Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5v) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1i)(B) of Section 5.01(b5.01(f) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes;
(vi) the Co-Issuer, unless it is the party to the transactions described above, shall have by supplemental indenture confirmed that it continues to be a co-obligor of the Notes; and
(6vii) the Issuer or, if applicable, the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for for, the Company Issuer under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding the foregoing,, as applicable.
(1c) Notwithstanding clauses (iii) and (iv) of Section 5.01(a) hereof:
(i) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge with or into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company Issuer or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3ii) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Issuer in the United StatesStates of America, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2d) Holdings Notwithstanding the foregoing, this Section 5.01 shall not apply to the Transactions.
(e) The Co-Issuer may not, directly or indirectly, consolidate or amalgamate merge with or merge into or wind up into (whether or not the Company; provided Co-Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Co-Issuer’s properties or assets, in one or more related transactions, to any Person, unless:
(i) (A) concurrently therewith, a corporate Wholly-Owned Subsidiary that if is a Restricted Subsidiary of the Company has Issuer organized and validly existing under the laws of the United States of America, any state thereof, the District of Columbia or any territory thereof (which may be the continuing Person as a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days result of such guarantee, become a guarantor transaction) expressly assumes all the obligations of the Co-Issuer under the Notes on the same terms as Holdings.pursuant to supplemental indentures or other documents or instruments; or
Appears in 2 contracts
Samples: Indenture (Summit Materials, LLC), Indenture (Summit Materials, LLC)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Neither Issuer nor Xxxxxxx XX may not consolidate or merge with or into or wind up into (whether or not such Person is the surviving Person), and Xxxxxxx XX may not sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Covenant Parties and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(i) such Issuer or Xxxxxxx XX, as applicable, is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Issuer or Xxxxxxx XX, as applicable) or the Person to whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made is organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (or, in the case of Xxxxxxx XX, an entity organized or existing under the laws of the Netherlands, United Kingdom, Switzerland or any member country of the European Union as of the Issue Date) (such Person, as the case may be, being herein called the “Successor Company”);
(ii) the Successor Company, if other than such Issuer or Xxxxxxx XX, as applicable, expressly assumes all the obligations of such Issuer under the Notes or Xxxxxxx XX under its related Guarantee, as applicable, pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction, no Default exists;
(iv) each Guarantor, unless it is the other party to the transactions described above, in which case Section 5.01(c)(ii) hereof shall apply, shall have by supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(v) the Issuers shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, winding-up, sale, assignment, transfer, lease, conveyance or other disposition and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company shall succeed to, and be substituted for such Issuer or Xxxxxxx XX, as applicable, as the case may be, under this Indenture, the Guarantee and the Notes, as applicable. Notwithstanding clause (iii) of Section 5.01(a) hereof,
(i) any Covenant Party or Restricted Subsidiary may consolidate or merge with or into or wind-up into or sell, assignment transfer, lease, convey or otherwise dispose of all or part of its properties and assets to an Issuer or Restricted Guarantor; and
(ii) an Issuer may merge with an Affiliate of such Issuer, as the case may be, solely for the purpose of reorganizing such Issuer in a State of the United States so long as the amount of Indebtedness of the Covenant Parties and the Restricted Subsidiaries is not increased thereby.
(c) Subject to certain limitations described in this Indenture governing release of a Guarantee thereunder upon the sale, disposition or transfer of a Guarantor, no Restricted Guarantor shall, and the Covenant Parties shall not permit any Restricted Guarantor to, consolidate or merge with or into or wind up into (whether or not an Issuer or Restricted Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company such Restricted Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Companysuch Restricted Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person organized or existing under the laws of the jurisdiction of organization of such Restricted Guarantor, as the case may be, or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof thereof, the Netherlands, the United Kingdom, Switzerland, any member state of the European Union as of the Issue Date or the jurisdiction of organization of any Restricted Guarantor (such Restricted Guarantor or such Person, as the case may be, being herein called the “Successor CompanyPerson”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor CompanyPerson, if other than the Companysuch Restricted Guarantor, expressly assumes all the obligations of the Company such Restricted Guarantor under the Notes this Indenture and the Security Documents such Restricted Guarantor’s related Guarantee pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3iii) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6iv) the Company Issuers shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(bd) The In the case of Section 5.01(c), the Successor Company will Person shall succeed to, and be substituted for the Company for, such Restricted Guarantor under this Indenture and the Notessuch Restricted Guarantor’s Guarantee thereunder. Notwithstanding the foregoing,
(1) , any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company another Restricted Guarantor or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as HoldingsIssuer.
Appears in 2 contracts
Samples: Indenture (Nielsen Holdings PLC), Indenture (Nielsen Holdings PLC)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into into, consummate a Division as the Dividing Person (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of (including, in each case, by way of Division) all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation amalgamation, merger or merger Division (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer, as the case may be, or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, if other than the Company, Issuer expressly assumes all the obligations of the Company Issuer under this Indenture and the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3iii) immediately after such transaction, no Default exists;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,:
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, ; or
(B) the Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5v) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1i)(B) of Section 5.01(b5.01(e) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6vi) the Issuer or, if applicable, the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation Division or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for the Company Issuer under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding , as applicable, and the foregoing,Issuer will automatically be released and discharged from its obligations under this Indenture, the Guarantees and the Notes.
(1c) Notwithstanding clauses (iii) and (iv) of Section 5.01(a) hereof:
(i) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge with or into or consummate a Division as the Dividing Person or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company Issuer or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3ii) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Issuer may merge with an Affiliate of the Company Issuer, or consummate a Division as the Dividing Person with an Affiliate of the Issuer solely for the purpose of reorganizing or reincorporating the Company Issuer in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2d) Holdings may [Reserved].
(e) Subject to Section 10.06 hereof, no Subsidiary Guarantor shall, and the Issuer shall not permit any Subsidiary Guarantor to, consolidate or amalgamate merge with or merge into or wind up into or consummate a Division as the Company; provided that if Dividing Person (whether or not such Subsidiary Guarantor is the Company has a new direct holding company parent following surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of (including, in each case, by way of Division) all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(i) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation amalgamation, merger or consolidation that guarantees Division (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the Senior Credit Facilities, such parent company will, within 30 days laws of the jurisdiction of organization of such guaranteeGuarantor, become a guarantor as applicable, or the laws of the Notes on United States, any state thereof, the same terms District of Columbia, or any territory thereof (such surviving Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 2 contracts
Samples: Indenture (Hilton Worldwide Holdings Inc.), Indenture (Hilton Worldwide Holdings Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuer shall not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated the properties or assets taken as of the Issuer and its Subsidiaries on a wholeconsolidated basis, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person corporation organized or existing under the laws of the United StatesStates of America, any state thereof, the District of Columbia, or any territory thereof (the Issuer or such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under this Indenture and the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Company Successor Company, the Issuer and the Restricted Subsidiaries on a consolidated basis would be greater than the Fixed Charge Coverage Ratio such ratio for the Company Issuer and the Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, Guarantor unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b5.01(c)(1)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security DocumentsRegistration Rights Agreement; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture. Notwithstanding anything to the contrary herein, the disposition of a Designated Business pursuant to Section 4.07(b)(18) or Section 4.10 shall not be deemed to be a sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Issuer and its Subsidiaries on a consolidated basis.
(b) The Successor Company will shall succeed to, and be substituted for for, the Company Issuer under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor, as applicable. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,:
(1) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to, the Company Issuer, and
(2) the Issuer may merge with an Affiliate of the Company Issuer incorporated solely for the purpose of reincorporating the Company Issuer in another State of the United States, States of America or the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its the Restricted Subsidiaries is not increased thereby; and.
(2c) Holdings may Subject to certain limitations described in this Indenture governing release of a Guarantee upon the sale, disposition or transfer of a Guarantor, each Guarantor shall not, and the Issuer shall not permit any Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not such Guarantor is the Company; provided that surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(1) (A) such Guarantor is the surviving entity or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor laws of the Notes on United States of America, any state thereof, the same terms District of Columbia, or any territory thereof (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 2 contracts
Samples: Indenture (Aramark), Indenture (Aramark)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Borrower shall not consolidate or merge with or into or wind up into (whether or not the Company Borrower is the surviving entity), or sell, assign, transfer, lease, convey or otherwise dispose of properties and assets constituting all or substantially all of the properties or assets of the Borrower and the Restricted Subsidiaries on a consolidated basis, in one or more related transactions, to any Person unless:
(i) the Borrower is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, limited partnership or limited liability company organized or existing under the laws of the United States of America, any state thereof or the District of Columbia (the Borrower or such Person, as the case may be, being herein called the “Successor Borrower”);
(ii) the Successor Borrower, if other than the Borrower, expressly assumes all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to supplements to the Loan Documents or other documents or instruments in form reasonably satisfactory to the Agent;
(iii) immediately after such transaction, no Default exists;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the most recently ended Test Period, the Successor Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Interest Coverage Ratio test set forth in Section 6.01(a);
(v) each Loan Guarantor, unless it is the other party to the transactions described above and is not the Successor Borrower, shall have by supplement to the Loan Documents confirmed that its guarantee of the Obligations shall apply to such Successor Borrower’s obligations under the Loan Documents and the Term Loans; and
(vi) the Borrower shall have delivered to the Agent an Officers’ Certificate and an opinion of counsel, each stating that such consolidation, merger or transfer and such supplements to the Loan Documents, if any, comply with this Agreement and the other Loan Documents; provided that the Borrower shall promptly notify the Agent of any such transaction and shall take all required actions either prior to or within 30 days following such transaction (or such longer period as to which the Agent may consent) in order to preserve and protect the Liens on the Collateral securing the Obligations; provided, further, the Borrower shall, promptly following a request by the Agent (on behalf of itself or any Lender), provide all reasonable documentation and other information that the Agent or such Lender reasonably requests with respect to such Successor Borrower that is a Requirement of Law in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. Upon compliance with the foregoing requirements, the Successor Borrower shall succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents and, except in the case of a lease transaction, the predecessor Borrower will be released from its obligations hereunder and thereunder. Notwithstanding subclauses (a)(iii) and (a)(iv) of this Section 6.03, (i) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to, the Borrower, and (ii) the Borrower may merge with an Affiliate of the Borrower incorporated solely for the purpose of reincorporating the Borrower in another state of the United States of America so long as the amount of Indebtedness of the Borrower and the Restricted Subsidiaries is not increased thereby.
(b) Subject to Section 10.12, no Subsidiary Guarantor shall, and the Borrower shall not permit any Subsidiary Guarantor to, consolidate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactionstransactions to, to any Person unless:
(1i) the Company (A) such Subsidiary Guarantor is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Companysuch Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the United StatesStates of America, any state thereof, thereof or the District of Columbia, Columbia (such Subsidiary Guarantor or any territory thereof (such Person, as the case may be, being herein called the “Successor CompanyPerson”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2B) the Successor CompanyPerson, if other than the Companysuch Subsidiary Guarantor, expressly assumes all the obligations of the Company such Subsidiary Guarantor under the Notes such Subsidiary Guarantor’s Loan Guaranty and the Security Documents other Loan Documents, pursuant to supplemental indentures a Joinder Agreement and supplements to the Loan Documents or other documents or instruments;
instruments in form reasonably satisfactory to the Agent, (3C) immediately after such transaction, no Event of Default exists;
, and (4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(AD) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company Borrower shall have delivered to the Trustee Agent an Officer’s Officers’ Certificate and an Opinion opinion of Counselcounsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indenturesJoinder Agreement and supplements, if any, comply with this Indenture.Agreement and the other Loan Documents; or
(bii) The the transaction is made in compliance with Section 6.06 (other than clause (e) thereof) and Section 6.07; provided that the Borrower shall notify the Agent of any transaction referred to in subclause (b)(i) above and shall take all required actions either prior to or within 30 days following such transaction (or such longer period as to which the Agent may consent) in order to preserve and protect the Liens on the Collateral securing the Obligations. Upon compliance with the requirements of subclause (b)(i) above, the Successor Company will Person shall succeed to, and be substituted for the Company for, such Subsidiary Guarantor under this Indenture such Subsidiary Guarantor’s Loan Guaranty and the Notesother Loan Documents and, except in the case of a lease transaction, such Subsidiary Guarantor will be released from its obligations thereunder. Notwithstanding the foregoing,
(1) , any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to another Subsidiary Guarantor or the Company or any Restricted Subsidiary,Borrower.
(2c) any Subsidiary Guarantor may consolidate [Reserved].
(d) [Reserved].
(e) [Reserved].
(f) For purposes of this Section 6.03, the sale, lease, conveyance, assignment, transfer or amalgamate with or merge into or transfer other disposition of all or part substantially all of its the properties and assets to of one or more Subsidiaries of the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary Borrower, which properties and assets, if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) held by the Company may transfer Borrower instead of such Subsidiaries, would constitute all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate substantially all of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness properties and assets of the Company Borrower and its Restricted Subsidiaries on a consolidated basis (excluding from such determination any Person that is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor Restricted Subsidiary of the Notes Borrower), shall be deemed to be the transfer of all or substantially all of the properties and assets of the Borrower on a consolidated basis. However, transfers of assets between or among the same terms as HoldingsBorrower and the Restricted Subsidiaries in compliance with Section 6.06 and Section 6.07 shall not be subject to this Section 6.03(f).
Appears in 2 contracts
Samples: Incremental Facility Amendment (Clean Harbors Inc), Credit Agreement (Clean Harbors Inc)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company. The Company may not not, directly or indirectly, consolidate or merge with or into or wind up into (whether or not the Company is the surviving Person), corporation) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated the Company’s properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company is the surviving Person entity or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership (including a limited partnership), trust or limited liability company organized or existing under the laws of the jurisdiction of organization of the Company or the laws of the United States, any state thereof, the District of Columbia, Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person Successor Company is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents Notes, pursuant to a supplemental indentures indenture or other documents or instruments;
(3) immediately after such transaction, no Default or Event of Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(Aa) the Successor Company or the Company Successor Company, as applicable, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, Ratio test set forth in Section 4.09(a) or
(Bb) the Fixed Charge Coverage Ratio for of the Company (or, if applicable, the Successor Company) and its Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for such ratio of the Company and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Subsidiary Guarantor, unless (i) it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause Section 5.01(b)(1)(b) shall apply or (1ii) of Section 5.01(b) hereof shall applythe Company is the surviving entity, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security Documentsapplicable Notes; and
(6) the Company (or, if applicable, the Successor Company) shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indenturesindenture, if any, comply complies with this Indenture.
(b) . The Successor Company will succeed to, and be substituted for for, the Company under this Indenture Indenture, the Guarantees and the Notes, as applicable. Notwithstanding the foregoingforegoing clauses (3) and (4),
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); , and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(12) the Company may merge with an Affiliate of the Company Company, as the case may be, solely for the purpose of reincorporating the Company in the United States, any state thereof, the District of Columbia or any territory thereof so long as or for the amount sole purpose of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate forming or amalgamate with or merge into the Company; provided that if the Company has collapsing a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdingsstructure.
Appears in 2 contracts
Samples: Indenture (Vista Outdoor Inc.), Indenture (Chemours Co)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither the Company nor the Issuer may not consolidate or merge with or into or wind up into (whether or not the Company or the Issuer, as the case may be, is the surviving Personcorporation), nor may the Company or the Issuer sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated the properties or assets of the Company or the Issuer, as the case may be, and its Subsidiaries which are Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person (other than CCU or its Restricted Subsidiaries (as defined in the indenture described in clause (b) of the definition of Existing Senior Notes Indentures)) unless:
(1) the Company or the Issuer, as the case may be, is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyCompany or the Issuer, as the case may be) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Company, the Issuer or such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person Successor Company is not a corporation, a co-obligor of the 2017 A Notes is a corporation;
(2) the Successor Company, if other than the CompanyCompany or the Issuer, as the case may be, expressly assumes all the obligations of the Company or the Issuer, as the case may be, under the Notes and Company’s Guarantee or the Security Documents 2017 A Notes, as applicable, pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to each of the Fixed Charge Coverage Testratio tests set forth in Section 4.09(a) hereof, or
(B) (x) the Fixed Charge Coverage Consolidated Leverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater equal to or less than the Fixed Charge Coverage such Consolidated Leverage Ratio for the Company immediately prior to such transactionacquisition or merger and (y) the Senior Leverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or less than such Senior Leverage Ratio immediately prior to such acquisition or merger;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (11)(B) of Section 5.01(b5.01(c) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security Documents2017 A Notes; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for for, the Company or the Issuer, as the case may be, under this Indenture and the 2017 A Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor, as applicable. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company or any Restricted Subsidiary (other than the Issuer) may consolidate with or merge into or transfer all or part of its properties and assets to the Issuer or a Guarantor; and
(2) the Company or the Issuer may merge with an Affiliate of the Company or the Issuer, as the case may be, solely for the purpose of reincorporating reorganizing the Company or the Issuer, as the case may be, in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Company, the Issuer and its Restricted Subsidiaries is not increased thereby. Notwithstanding Sections 5.01(a) and 5.01(b), other than Section 5.01(a)(3) which shall be applicable, any Restricted Subsidiaries of the Issuer that are not Guarantors may consolidate or merge with or into or wind up into, and the Issuer or any of its Restricted Subsidiaries that are not Guarantors may sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of, or Equity Interests in, its Restricted Subsidiaries that are not Guarantors, taken as a whole, in one or more related transactions to any Person (such disposition, a “Foreign Disposition”); and
provided, however, that (1) such Foreign Disposition is a Qualified Asset Sale, and (2) Holdings may if, on a pro forma basis, the Consolidated Leverage Ratio would be equal to or greater than 6.0 to 1.0 or the Senior Leverage Ratio would be equal to or greater than 3.0 to 1.0, then the Issuer shall make an offer to purchase all the outstanding 2017 A Notes at 100% of the principal amount thereof in a manner and time frame as would be required if such offer were a Change of Control Offer. If a Foreign Disposition does not constitute a disposition of all or substantially all of the properties or assets of the Issuer, this paragraph shall not be applicable.
(c) No Restricted Guarantor shall, and the Company shall not permit any Restricted Guarantor to, consolidate or amalgamate merge with or merge into the Company; provided that if or wind up into (whether or not the Company has a new direct holding company parent following or such consolidationRestricted Guarantor is the surviving corporation), amalgamation or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person (other than CCU or its Restricted Subsidiaries (as defined in the indenture described in clause (b) of the definition of the Existing Senior Notes Indentures)) unless:
(1) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation that guarantees or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is organized or existing under the Senior Credit Facilities, such parent company will, within 30 days laws of the jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes on United States, any state thereof, the same terms District of Columbia, or any territory thereof (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 2 contracts
Samples: Indenture (Clear Channel Outdoor Holdings, Inc.), Indenture (Clear Channel Communications Inc)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may not Issuer shall not, directly or indirectly, in a single transaction or a series of related transactions, (a) consolidate or merge with or into or wind up into (whether or not the Company is the surviving another Person), or sell, assignlease, transfer, lease, convey or otherwise dispose of or assign all or substantially all of its consolidated properties the assets of the Issuer or assets the Issuer and the Restricted Subsidiaries (taken as a whole) or (b) adopt a Plan of Liquidation unless, in one or more related transactions, to any Person unlesseither case:
(1) either:
(A) the Company is Issuer shall be the surviving Person or continuing Person; or
(B) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been madeshall be made (or, in the case of a Plan of Liquidation, any Person to which assets are transferred) (collectively, the “Successor”) is a Person corporation, limited liability company or limited partnership organized or and existing under the laws of any State of the United States, any state thereof, States of America or the District of Columbia, and the Successor expressly assumes, by agreements in form and substance reasonably satisfactory to the Trustee, all of the obligations of the Issuer under the Notes and this Indenture;
(2) immediately prior to and immediately after giving effect to such transaction and the assumption of the obligations as set forth in clause (1)(B) above and the incurrence of any Indebtedness to be incurred in connection therewith, and the use of any net proceeds therefrom on a pro forma basis, no Default shall have occurred and be continuing; and
(3) immediately after and giving effect to such transaction and the assumption of the obligations set forth in clause (1)(B) above and the incurrence of any Indebtedness to be incurred in connection therewith, and the use of any net proceeds therefrom on a pro forma basis, the Issuer or any territory thereof (such Personthe Successor, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
either (2a) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company Exception (as such term is defined in a supplemental indenture) or (b) would be have a Consolidated Interest Coverage Ratio (as such term is defined in a supplemental indenture) equal to or greater than the Fixed Charge Issuer’s Consolidated Interest Coverage Ratio for the Company (as such term is defined in a supplemental indenture) immediately prior to such transaction;
(5) each Guarantor. For purposes of this covenant, unless it is a Subsidiary Guarantor that is any Indebtedness of the other party Successor which was not Indebtedness of the Issuer immediately prior to the transactions described above, transaction shall be deemed to have been incurred in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to connection with such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company under this Indenture and the Notestransaction. Notwithstanding the foregoing,
preceding clauses (12) and (3) (which do not apply to transactions referred to in this sentence), (a) any Restricted Subsidiary that is not a Subsidiary Guarantor of the Issuer may consolidate or amalgamate with or otherwise combine with, merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
Issuer, and (2b) any Subsidiary Guarantor the Issuer may consolidate or amalgamate otherwise combine with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely incorporated or organized for the purpose of changing the legal domicile of the Issuer, reincorporating the Company Issuer in another jurisdiction, or changing the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness legal form of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as HoldingsIssuer.
Appears in 2 contracts
Samples: Indenture (ExamWorks Group, Inc.), Indenture (Verity Administrators, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuer shall not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or nor shall the Issuer sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated the properties or assets of the Issuer and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to (X) any Person (other than Holdings) unless:
(1) the Company Issuer is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Issuer or such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person Successor Company is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under this Indenture, the Notes and the Security Documents pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestConsolidated Leverage Ratio test set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Consolidated Leverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater equal to or less than the Fixed Charge Coverage such Consolidated Leverage Ratio for the Company immediately prior to such transactionconsolidation or merger;
(5) each Restricted Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (11)(B) of Section 5.01(b5.01(c) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee and security interest under the Security Documents shall apply to such Person’s obligations under this Indenture, the Guarantee, the Notes and the Security Documents; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.or
Appears in 2 contracts
Samples: Indenture (Clear Channel Communications Inc), Indenture (Clear Channel Communications Inc)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may not consolidate shall not, directly or indirectly: (1) consolidate, amalgamate or merge with or into or wind up into another Person (whether or not the Company is the surviving Person), ; or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any Person another Person, unless:
(1i) either: (a) the Company is the surviving Person Person; or (b) the Person (if other than the Company) formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have has been made, made (x) is a Person corporation, limited liability company, trust or limited partnership organized or existing under the laws of an Eligible Jurisdiction, and (y) assumes all the United States, any state thereof, obligations of the District of Columbia, or any territory thereof (such Person, as Company under this Agreement and the case may be, being herein called other Loan Documents pursuant to agreements reasonably satisfactory to the “Successor Company”)Administrative Agent; provided that in the case where the surviving Person is not a corporationcompany organized under the laws of the United States, any state thereof or the District of Columbia, a joint and several co-obligor borrower of the Notes Loans and other Obligations is a corporationcorporation organized under the laws of the United States, any state thereof or the District of Columbia;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3ii) immediately after giving effect to such transaction, no Default or Event of Default exists;; and
(4iii) immediately either (a) the Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than a Borrower), or to which such sale, assignment, transfer, conveyance or other disposition has been made, will, on the date of such transaction after giving pro forma effect to such transaction thereto and any related financing transactions, transactions as if such transactions the same had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would , be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
Ratio test set forth in Section 6.2 or (Bb) the Fixed Charge Coverage Ratio for the Company would or such surviving Person determined in accordance with Section 6.2(a) shall be greater than the Fixed Charge Coverage Ratio test for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause each case, determined on a Pro Forma Basis. In addition, the Company may not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person; provided that the foregoing shall not prohibit the chartering out of Vessels in the ordinary course of business. For purposes of the foregoing, the transfer (1by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indentureall or substantially all of the properties or assets of one or more Restricted Subsidiaries, the Notes Equity Interests of which constitute all or substantially all of the properties and assets of the Security Documents; and
(6) Company, will be deemed to be the Company shall have delivered to transfer of all or substantially all of the Trustee an Officer’s Certificate properties and an Opinion assets of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenturethe Company.
(b) The Successor Company will succeed not permit any Guarantor to, directly or indirectly, consolidate, amalgamate or merge with or into another Person (whether or not the Company or such Guarantor is the surviving Person) unless:
(i) subject to the Guarantee release provisions described below, such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company or a Guarantor) expressly assumes all the obligations of such Guarantor under the Guarantee of such Guarantor, this Agreement and be substituted the other Loan Documents pursuant to agreements reasonably satisfactory to the Administrative Agent; and
(ii) immediately after such transaction, no Default or Event of Default exists.
(c) This Section 6.8 will not apply to a merger of the Company, a Guarantor or a Wholly Owned Restricted Subsidiary of such Person with an Affiliate solely for the Company under purpose, and with the effect, of reorganizing the Company, a Guarantor or a Wholly Owned Restricted Subsidiary, as the case may be, in an Eligible Jurisdiction. In addition, nothing in this Indenture and the Notes. Notwithstanding the foregoing,
(1) “Merger, Consolidation or Sale of Assets” will prohibit any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate from consolidating or amalgamate amalgamating with, merging with or merge into or transfer conveying, transferring or leasing, in one transaction or a series of transactions, all or part substantially all of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a another Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely reconstituting itself in another jurisdiction for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has reflagging a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdingsvessel.
Appears in 2 contracts
Samples: Credit Agreement (Navios Maritime Partners L.P.), Credit Agreement (Navios Maritime Midstream Partners LP)
Merger, Consolidation or Sale of All or Substantially All Assets. Section 5.01 of the Base Indenture is hereby amended and restated in its entirety as follows:
(a) The Company may Issuer shall not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation wind-up or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person corporation, partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, and, to the extent the Successor Company is not a corporation, a Subsidiary of such Successor Company that is a co-obligor and a corporation organized or existing under the laws of the United States, any state of the United States, the District of Columbia or any territory thereof, expressly assumes all the obligations of the Company Issuer under the Notes Notes, this Indenture and the Security Documents to which it is a party, pursuant to a supplemental indentures indenture or other documents document or instrumentsinstrument in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactionstransactions (including, without limitation, any transaction the proceeds of which are applied to reduce the Indebtedness of the Successor Company or the Issuer, as the case may be), as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 2 contracts
Samples: Indenture (Energy Future Intermediate Holding CO LLC), Indenture (Energy Future Intermediate Holding CO LLC)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may shall not consolidate or merge with or into or wind up into (whether or not the Company is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactions, to any Person unless:
(1i) the Company is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Company or such Person, as the case may be, being herein called the "Successor Company");
(ii) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under this Indenture and the Securities pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction) no Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either (A) the Successor Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03 (a) hereof or (B) the Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to the Successor Company's obligations under this Indenture and the Securities; and
(vi) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. The Successor Company shall succeed to, and be substituted for, the Company under this Indenture and the Securities. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary and (b) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another state of the United States so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.
(b) Subject to Section 11.02(b) hereof governing the release of a Guarantee upon the sale or disposition of a Guarantor that is a Subsidiary of the Company, each Guarantor shall not, and the Company shall not permit a Guarantor to, consolidate or merge with or into or wind up into (whether or not such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Guarantor or such Person, as the case may be, being herein called the “"Successor Company”Guarantor"); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, Guarantor (if other than the Company, such Guarantor) expressly assumes all the obligations of the Company such Guarantor under the Notes this Indenture and the Security Documents such Guarantor's Guarantee pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4iii) immediately after giving pro forma effect to such transaction (and treating any related financing transactions, Indebtedness which becomes an obligation of the Successor Guarantor or any of its Subsidiaries as if a result of such transactions had occurred transaction as having been Incurred by the Successor Guarantor or such Subsidiary at the beginning time of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) no Default or Event of Section 5.01(b) hereof shall apply, Default shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes occurred and the Security Documentsbe continuing; and
(6iv) the Company Guarantor shall have delivered or caused to be delivered to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, indenture (if any, ) comply with this Indenture.
(b) The . Subject to Section 11.02(b), the Successor Company will Guarantor shall succeed to, and be substituted for the Company for, such Guarantor under this Indenture and the Notessuch Guarantor's Guarantee. Notwithstanding the foregoing,
foregoing clause (1) any Restricted Subsidiary that is not iii), a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company incorporated solely for the purpose of reincorporating the Company such Guarantor in another state of the United States, the District of Columbia or any territory thereof States so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries Guarantor is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 2 contracts
Samples: Indenture (Volume Services America Holdings Inc), Indenture (Volume Services America Inc)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the assets of the Issuer and its consolidated properties or assets Subsidiaries, taken as a wholewhole (including, in each case, by way of division), in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or the Person to which whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership (including a limited partnership), trust, limited liability company or similar entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia, Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under this Indenture, the Notes and the Security Documents pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company Issuer, as applicable, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestConsolidated Net Leverage Ratio test set forth in Section 4.10(a) hereof, or
(B) the Fixed Charge Coverage Consolidated Net Leverage Ratio for the Successor Company or the Issuer, as applicable, and its Restricted Subsidiaries would be greater less than the Fixed Charge Coverage Ratio or equal to such ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5) if the Issuer is not the Successor Company, each Subsidiary Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee and grant of liens pursuant to the Security Documents shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security Documents; andNotes;
(6) the Company shall have delivered Collateral owned by or transferred to the Trustee an Officer’s Certificate Successor Company will continue to constitute Collateral under this Indenture and an Opinion the Security Documents and will not be subject to any other Lien, other than Permitted Liens; and
(7) to the extent any assets of Counselthe Person which is merged or consolidated with or into the Successor Company are assets of the type which would constitute Collateral under the Security Documents, each stating the Successor Company will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required in this Indenture or any of the Security Documents and shall and take all reasonably necessary action so that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) Lien is perfected to the extent required by the Security Documents. The Successor Company will succeed to, and be substituted for for, the Company Issuer under this Indenture and the Notes and, except in the case of a lease, the Issuer will be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding foregoing clauses (3) and (4) of Section 5.01(a) hereof,
(1) any Restricted Subsidiary may consolidate with, merge into or wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company Issuer or any Restricted Subsidiary; and
(2) the Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating reorganizing the Company Issuer in a state or commonwealth of the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2b) Holdings may Subject to certain limitations described in this Indenture governing release of a Guarantee by a Subsidiary Guarantor, no Subsidiary Guarantor will, and the Issuer will not permit any such Subsidiary Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not such Subsidiary Guarantor is the Company; provided that if surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days assets of such guaranteeSubsidiary Guarantor and its Subsidiaries, become taken as a guarantor whole, in one or more related transactions, to any Person unless:
(1) (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the laws of the Notes on jurisdiction of organization of such Subsidiary Guarantor, as the same terms case may be, or the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof (such Subsidiary Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 2 contracts
Samples: Indenture (Entercom Communications Corp), Indenture (Entercom Communications Corp)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate with, amalgamate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets assets, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Issuer shall be the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Person organized or existing under the laws of a jurisdiction described in clause (a) of the definition of Permitted Jurisdiction (such Person, as the case may be, being herein called the “Successor Company”);
(2) the Successor Company, if other than the Issuer, expressly assumes all the obligations of the Issuer under this Indenture and the Notes pursuant to a supplemental indenture;
(3) immediately after such transaction no Event of Default shall have occurred and be continuing;
(4) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period:
(A) the Successor Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or
(B) the Fixed Charge Coverage Ratio for the Successor Company and the Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and the Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is the other party to the transactions described in Section 5.01(a)(1) through (4), in which case Section 5.01(b)(2) shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(6) the Issuer or such Successor Company, as applicable, shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger, sale, assignment, transfer, lease, conveyance or disposition and such supplemental indentures, amendments, supplements or other instruments, if any, comply with this Indenture. The Successor Company shall succeed to, and be substituted for, the Issuer under this Indenture and the Notes, and the Issuer shall automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (3) and (4),
(A) the Issuer may consolidate with, amalgamate or merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Guarantor;
(B) any Restricted Subsidiary may consolidate with, amalgamate or merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Issuer;
(C) the Issuer may consolidate with, amalgamate or merge into with an Affiliate of the Issuer solely for the purpose of reincorporating or reorganizing the Issuer in any jurisdiction described in clause (a) of the definition of Permitted Jurisdiction so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby (unless such increase is permitted by this Indenture);
(D) the Issuer may convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of any jurisdiction described in clause (a) of the definition of Permitted Jurisdiction; and
(E) the Issuer may change its name.
(b) Subject to Section 10.06, each Guarantor shall not, and the Issuer shall not permit any Guarantor to, consolidate with, amalgamate or merge into (whether or not such Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all its properties or assets, taken as a whole, in one or more related transactions, to any Person (other than the Issuer or a Guarantor) unless:
(1) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Companysuch Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, a Permitted Jurisdiction (such Guarantor or any territory thereof (such Person, as the case may be, being herein called the “Successor CompanyPerson”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 2 contracts
Samples: Indenture (Fortress Transportation & Infrastructure Investors LLC), Indenture (Fortress Transportation & Infrastructure Investors LLC)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United StatesStates of America, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3iii) immediately after such transaction, no Default exists;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-four- quarter period,:
(A) the Successor Company or the Company Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, ; or
(B) the Fixed Charge Coverage Ratio for Parent (or the Company Successor Company, as applicable) and its Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Parent and its Restricted Subsidiaries immediately prior to such transaction;
(5v) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1i)(B) of Section 5.01(b5.01(e) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6vi) the Issuer or, if applicable, the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for for, the Company Issuer under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding , as applicable, and the foregoing,Issuer will automatically be released and discharged from its obligations under this Indenture, the Guarantees and the Notes.
(1c) Notwithstanding clauses (iii) and (iv) of Section 5.01(a) hereof:
(i) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge with or into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company Issuer or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3ii) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Issuer in the United StatesStates of America, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2d) Holdings may Parent shall not consolidate or amalgamate merge with or merge into or wind up into (whether or not Parent is the Company; provided that surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(i) (A) Parent is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than Parent) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor laws of the Notes on jurisdiction of organization of Parent, as applicable, or the same terms laws of the United States of America, any state thereof, the District of Columbia, or any territory thereof (such surviving Person, as Holdings.the case may be, being herein called the “Successor Parent”);
Appears in 2 contracts
Samples: Indenture (Performance Food Group Co), Indenture (Performance Food Group Co)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may shall not consolidate with or merge with or into or wind up into (whether or not the Company is the surviving Personcorporation), or sell, assign, convey, transfer, lease, convey lease or otherwise dispose of all or substantially all of the properties and assets of the Company and its consolidated properties or assets Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company is resulting, surviving or transferee Person (the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the “Successor Company”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person corporation or limited liability company organized or and existing under the laws of the United States, any state thereof, or territory thereof or the District of Columbia, or any territory thereof (and if such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person entity is not a corporation, a co-obligor of the Notes is a corporationcorporation organized or existing under such laws;
(2) the Successor Company, Company (if other than the Company, ) expressly assumes all of the obligations of the Company under the Notes and the Security Documents this Indenture pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after giving effect to such transaction, no Default existsor Event of Default shall have occurred and be continuing;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(Aa) the Successor Company or the Company would be permitted able to incur Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, Section 4.09(a); or
(Bb) the Fixed Charge Coverage Consolidated Leverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater equal to or less than the Fixed Charge Coverage Ratio such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, Guarantor (unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1Section 5.01(c)(1) of Section 5.01(b) hereof shall apply, ) shall have by supplemental indenture confirmed that its Note Guarantee shall apply to such PersonSuccessor Company’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation winding up or transfer disposition, and such supplemental indenturesindenture, if any, comply with this Indenture.
(b) The Successor Company will succeed to, Notwithstanding clauses (3) and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,(4) of Section 5.01(a):
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with, merge with or merge into or transfer all or part of its properties and assets to the Company or any other Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(12) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating or forming the Company in another state or territory of the United States, States or the District of Columbia or any territory thereof Columbia, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and.
(2c) Holdings may The Company shall not permit any Guarantor to consolidate or amalgamate with or merge with or into or wind up into (whether or not such Guarantor is the Company; provided that if surviving corporation), or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person (other than to the Company has or another Guarantor) unless:
(1) (a) if such entity remains a new direct holding company parent following such consolidationGuarantor, amalgamation the resulting, surviving or consolidation that guarantees transferee Person (the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become “Successor Guarantor”) is a guarantor Person (other than an individual) organized and existing under the laws of the Notes on United States, any state or territory thereof or the same terms as Holdings.District of Columbia or the laws under which such Guarantor was formed;
Appears in 2 contracts
Samples: Senior Notes Indenture (WeWork Inc.), Senior Notes Indenture (We Co.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may shall not consolidate with or merge with or into or wind up into (whether or not the Company is the surviving Personcorporation), or sell, assign, convey, transfer, lease, convey lease or otherwise dispose of all or substantially all of the properties and assets of the Company and its consolidated properties or assets Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company is resulting, surviving or transferee Person (the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the “Successor Company”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person corporation or limited liability company organized or and existing under the laws of the United States, any state thereof, or territory thereof or the District of Columbia, or any territory thereof (and if such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person entity is not a corporation, a co-obligor of the Notes is a corporationcorporation organized or existing under such laws;
(2) the Successor Company, Company (if other than the Company, ) expressly assumes all of the obligations of the Company under the Notes and the Security Documents this Indenture pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after giving effect to such transaction, no Default existsor Event of Default shall have occurred and be continuing;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(Aa) the Successor Company or the Company would be permitted able to incur Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, Section 4.09(a); or
(Bb) the Fixed Charge Coverage Consolidated Leverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater better than the Fixed Charge Coverage Ratio or equal to such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, Guarantor (unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1Section 5.01(c)(1) of Section 5.01(b) hereof shall apply, ) shall have by supplemental indenture confirmed that its Note Guarantee shall apply to such PersonSuccessor Company’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation winding up or transfer disposition, and such supplemental indenturesindenture, if any, comply with this Indenture.
(b) The Successor Company will succeed to, Notwithstanding clauses (3) and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,(4) of Section 5.01(a):
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with, merge with or merge into or transfer all or part of its properties and assets to the Company or any other Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(12) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating or forming the Company in another state or territory of the United States, States or the District of Columbia or any territory thereof Columbia, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and.
(2c) Holdings may The Company shall not permit any Guarantor to consolidate or amalgamate with or merge with or into or wind up into (whether or not such Guarantor is the Company; provided that if surviving corporation), or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person (other than to the Company has or another Guarantor) unless:
(1) (a) if such entity remains a new direct holding company parent following such consolidationGuarantor, amalgamation the resulting, surviving or consolidation that guarantees transferee Person (the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become “Successor Guarantor”) is a guarantor Person (other than an individual) organized and existing under the laws of the Notes on United States, any state or territory thereof or the same terms as Holdings.District of Columbia or the laws under which such Guarantor was formed;
Appears in 2 contracts
Samples: Senior Notes Indenture (WeWork Inc.), Senior Notes Indenture (WeWork Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or nor may the Issuer sell, assign, transfer, lease, convey or otherwise dispose of assets or properties that in either case constitute all or substantially all of its consolidated the properties or assets of the Issuer and its Subsidiaries which are Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Issuer or such Person, as the case may be, being herein called the “Successor CompanyIssuer”); provided that in the case where the surviving Person Successor Issuer is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor CompanyIssuer, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes and the Security Documents this Indenture pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestSection 4.09(a) hereof, or
(B) either (i) the Consolidated Leverage Ratio would not be higher, or (ii) the Fixed Charge Coverage Ratio for the Company would not be greater lower, in each case than the Fixed Charge Coverage Ratio for the Company it was immediately prior to such transactionacquisition or merger;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is (a) the other party to the transactions described above, in which case clause (11)(B) of Section 5.01(b5.01(c) hereof shall applyapply or (b) a Guarantor that will be released from its obligations under its Guarantee in connection with such transactions, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company Issuer will succeed to, and be substituted for for, the Company Issuer under this Indenture and the Notes. Notwithstanding , as applicable, and the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of Issuer, will be automatically released from its properties obligations under this Indenture and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary GuarantorNotes. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Issuer or any Restricted Subsidiary may consolidate with or merge into or transfer all or part of its properties and assets to the Issuer or a Guarantor; and
(2) the Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating reorganizing the Company Issuer in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2c) Holdings may Subject to Section 10.06 hereof, no Guarantor will, and the Issuer will not permit any Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not the Company; provided that Issuer or such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is organized or existing under the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees laws of the Senior Credit Facilities, such parent company will, within 30 days jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes on United States, any state thereof, the same terms District of Columbia, or any territory thereof (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 2 contracts
Samples: Indenture (Clear Channel Outdoor Holdings, Inc.), Indenture (Clear Channel Outdoor Holdings, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into into, consummate a Division as the Dividing Person (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) (a) the Company Issuer is the surviving Person or (b) the Person formed by or surviving any such consolidation, amalgamation amalgamation, merger or merger winding up or Division (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been mademade (such Person being herein called the “Successor Company”), (i) expressly assumes all of the obligations of the Issuer under the Indenture and the Notes, pursuant to supplemental indentures or other applicable documents or instruments and (ii) is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”)thereof; provided that in the case such a transaction where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3ii) immediately after such transaction, no Default or Event of Default exists;
(4iii) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,:
(A) the Successor Company Issuer or the Company Successor Company, as applicable, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, test set forth in Section 4.09(a) hereof; or
(B) either (x) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries or the Successor Company and its Restricted Subsidiaries, as applicable, would be equal to or greater than the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries immediately prior to such transaction or (y) the Consolidated Total Debt Ratio for the Issuer and its Restricted Subsidiaries or the Successor Company and its Restricted Subsidiaries, as applicable, would be equal to or less than the Consolidated Total Debt Ratio for the Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6iv) the Issuer or, if applicable, the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for for, the Company Issuer under this Indenture and the Notes and the Issuer will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing,.
(1c) any Restricted Subsidiary that is not a Subsidiary Guarantor Notwithstanding clauses (iii) and (iv) of Section 5.01(a) hereof:
(i) the Issuer may consolidate or amalgamate with or merge with or into or transfer wind up into, consummate a Division as the Dividing Person or sell, assign, transfer, lease, convey or otherwise dispose all or part of its properties and assets to the Company Co-Issuer or a Subsidiary Guarantor;
(ii) any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge with or into or transfer wind up into, consummate a Division as the Dividing Person or sell, assign, transfer, lease, convey or otherwise dispose all or part of its properties and assets to the Company Issuer or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3iii) the Company Issuer may transfer consolidate or amalgamate with or merge with or into or wind up into, consummate a Division as the Dividing Person or sell, assign, transfer, lease, convey or otherwise dispose all or part of its property or properties and assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating reorganizing the Company Issuer in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(d) The Co-Issuer may not consolidate or merge with or into or wind-up into, consummate a Division as the Dividing Person (whether or not the Co-Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Co-Issuer’s properties or assets, in one or more related transactions, to any Person, unless:
(i) (A) (1) the Co-Issuer is the surviving Person or (2) Holdings concurrently therewith, a corporate Wholly Owned Restricted Subsidiary of the Issuer organized and validly existing under the laws of the jurisdiction of incorporation of the Co-Issuer or the laws of the United States, any state thereof, the District of Columbia or any territory thereof (which may consolidate or amalgamate with or merge into be the Company; provided that if the Company has continuing Person as a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days result of such guarantee, become a guarantor transaction) expressly assumes all of the obligations of the Co-Issuer under the Indenture and the Notes on the same terms as Holdings.pursuant to supplemental indentures or other applicable documents or instruments; or
Appears in 2 contracts
Samples: Indenture (Hilton Grand Vacations Inc.), Indenture (Hilton Grand Vacations Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Borrower shall not consolidate or merge with or into or wind up into (whether or not the Company Borrower is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) either: (x) the Company Borrower is the surviving Person entity; or (y) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyBorrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor CompanyBorrower”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor CompanyBorrower, if other than the CompanyBorrower, expressly assumes all the obligations of the Company Borrower under the Notes and the Security Documents Loans pursuant to a supplemental indentures agreement or other documents or instrumentsinstruments in form reasonably satisfactory to the Administrative Agent;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-four quarter period,
(A) the Successor Company or the Company Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in Section 9.7(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Company Successor Borrower and the Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Borrower and the Restricted Subsidiaries immediately prior to such transaction;
(5) each Subsidiary Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b9.14(c)(1)(B) hereof shall apply, shall have by supplemental indenture agreement confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Agreement and the Security DocumentsLoans; and
(6) the Company Borrower shall have delivered to the Trustee Administrative Agent an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indenturesagreements, if any, comply with this IndentureAgreement and, if a supplemental agreement is required in connection with such transaction, such supplement shall comply with the applicable provisions of this Agreement.
(b) The Successor Company will Borrower shall succeed to, and be substituted for the Company Borrower, as the case may be, under this Indenture Agreement, the Guarantees and the NotesLoans. Notwithstanding the foregoingclauses (3) and (4) of Section 9.14(a) hereof,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or with, merge into or transfer all or part of its properties and assets to the Company Borrower or any Restricted Subsidiary,, and
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Borrower may merge with an Affiliate of the Company Borrower, as the case may be, solely for the purpose of reincorporating the Company Borrower in a State of the United StatesStates or any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Borrower and its Restricted Subsidiaries is not increased thereby; and.
(2c) Holdings may Subject to certain limitations described in this Agreement governing release of a Guarantee upon the sale, disposition or transfer of a Subsidiary Guarantor, no Subsidiary Guarantor shall, and the Borrower shall not permit any Subsidiary Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not the Company; provided that Borrower or Subsidiary Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees laws of the Senior Credit Facilities, such parent company will, within 30 days jurisdiction of organization of such guarantee, become a guarantor Subsidiary Guarantor or the laws of the Notes on United States, any state thereof, the same terms District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 2 contracts
Samples: Credit Agreement (Samson Resources Corp), Second Lien Term Loan Credit Agreement (Samson Holdings, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate with, amalgamate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets assets, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Issuer shall be the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Person organized or existing under the laws of a jurisdiction described in clause (a) of the definition of Permitted Jurisdiction (such Person, as the case may be, being herein called the “Successor Company”);
(2) the Successor Company, if other than the Issuer, expressly assumes all the obligations of the Issuer under this Indenture and the Notes pursuant to a supplemental indenture;
(3) immediately after such transaction no Default or Event of Default exists;
(4) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period:
(A) the Successor Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or
(B) the Fixed Charge Coverage Ratio for the Successor Company and the Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and the Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is the other party to the transactions described in Section 5.01(a)(1) through (4), in which case Section 5.01(b)(2) shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(6) the Issuer or such Successor Company, as applicable, shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger, sale, assignment, transfer, lease, conveyance or disposition and such supplemental indentures, amendments, supplements or other instruments, if any, comply with this Indenture. The Successor Company shall succeed to, and be substituted for, the Issuer under this Indenture and the Notes, and the Issuer shall automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (3) and (4),
(A) the Issuer may consolidate with, amalgamate or merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Guarantor;
(B) any Restricted Subsidiary may consolidate with, amalgamate or merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Issuer;
(C) the Issuer may consolidate with, amalgamate or merge into with an Affiliate of the Issuer solely for the purpose of reincorporating or reorganizing the Issuer in any jurisdiction described in clause (a) of the definition of Permitted Jurisdiction so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby (unless such increase is permitted by this Indenture);
(D) the Issuer may convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of any jurisdiction described in clause (a) of the definition of Permitted Jurisdiction; and
(E) the Issuer may change its name.
(b) Subject to Section 10.06, each Guarantor shall not, and the Issuer shall not permit any Guarantor to, consolidate with, amalgamate or merge into (whether or not such Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all its properties or assets, taken as a whole, in one or more related transactions, to any Person (other than the Issuer or a Guarantor) unless:
(1) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Companysuch Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, a Permitted Jurisdiction (such Guarantor or any territory thereof (such Person, as the case may be, being herein called the “Successor CompanyPerson”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 2 contracts
Samples: Indenture (Fortress Transportation & Infrastructure Investors LLC), Indenture (Fortress Transportation & Infrastructure Investors LLC)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may not consolidate Neither Holdings nor the Borrower shall consolidate, amalgamate or merge with or into or wind up into (whether or not Holdings or the Company Borrower, as applicable, is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) either: (x) Holdings or the Company Borrower, as the case may be, is the surviving Person entity; or (y) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Holdings or the CompanyBorrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person organized or existing under the laws of the jurisdiction of organization of Holdings or the Borrower, as applicable, or the laws of the United States, any state thereof, the District of Columbia, Columbia or any territory thereof or, in the case of Holdings, the laws of Canada or any province thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where if the surviving Person is not a corporation, a corporation organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of the United States, any state thereof, the District of Columbia or any territory thereof shall be a co-obligor Borrower of the Notes is a corporationLoans;
(2) the Successor Company, if other than Holdings or the CompanyBorrower, expressly assumes all the obligations of Holdings or the Company Borrower, as the case may be, under the Notes Loans and the Security Collateral Documents pursuant to a supplemental indentures agreement or other documents or instruments;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-four quarter period,
(A) Holdings (or, if applicable the Successor Company or the Company Company) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in Section 9.7(a) hereof, or
(B) the Fixed Charge Coverage Ratio for Holdings (or, if applicable, the Company Successor Company) and the Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Borrower and the Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b9.14(c)(1)(B) hereof shall apply, shall have by supplemental indenture agreement confirmed that its Guarantee shall apply to such Person’s obligations under this IndentureAgreement, the Notes Loans and the Security Collateral Documents; and
(6) Holdings (or, if applicable, the Company Successor Company) shall have delivered to the Trustee Administrative Agent an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indenturesagreements, if any, comply with this IndentureAgreement and, if a supplemental agreement is required in connection with such transaction, such supplement shall comply with the applicable provisions of this Agreement.
(b) The Successor Company will shall succeed to, and be substituted for Holdings or the Company Borrower, as the case may be, under this Agreement, the Guarantees, the Loans, the Collateral Documents, the Senior Refinancing Indenture and the NotesSenior Notes as applicable. Notwithstanding the foregoingclauses (3) and (4) of Section 9.14(a) hereof,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with, merge with or merge into or transfer all or part of its properties and assets to the Company Holdings or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge with or into or transfer all or part of its properties and assets to Holdings, the Company Borrower or a Subsidiary Guarantor (or to a Restricted Subsidiary that is not a Subsidiary Guarantor if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3a) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Holdings may merge with an Affiliate of the Company Holdings solely for the purpose of reincorporating the Company Holdings in Canada or any province or territory thereof or in the United States, any state thereof, the District of Columbia or any territory thereof and (b) the Borrower may merge with an Affiliate of the Borrower solely for the purpose of reincorporating the Borrower in the United States, any state thereof, the District of Columbia or any territory thereof, in the case of each of clauses (a) and (b), so long as the amount of Indebtedness of Holdings and the Company and its Restricted Subsidiaries is not increased thereby; and.
(2c) Holdings may Subject to certain limitations described in this Agreement governing release of a Guarantee upon the sale, disposition or transfer of a Subsidiary Guarantor, no Subsidiary Guarantor shall, and the Borrower shall not permit any Subsidiary Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not the Company; provided that if Borrower or Subsidiary Guarantor is the Company has a new direct holding company parent following surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or consolidation that guarantees merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the Senior Credit Facilities, such parent company will, within 30 days laws of the jurisdiction of organization of such guaranteeSubsidiary Guarantor, become a guarantor as applicable, or the laws of the Notes on United States, any state thereof, the same terms District of Columbia, or any territory thereof (such surviving Subsidiary Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 2 contracts
Samples: Second Lien Loan Agreement (SunOpta Inc.), Second Lien Loan Agreement (SunOpta Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company No Issuer may not consolidate or merge with or into or wind up into (whether or not such Person is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless:
(i) such Issuer is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership (including a limited partnership), trust or limited liability company organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided, in the case of the Company, that if such Person is not a corporation, a co-obligor of the Notes (which may be another Issuer or another corporation) is a corporation organized or existing under such laws;
(ii) the Successor Company, if other than such Issuer, expressly assumes all the obligations of such Issuer, as applicable, under this Indenture, the Security Documents and the Notes, as applicable, pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction, no Default exists;
(iv) immediately after giving pro forma effect to such transaction and any related financing transactions (including the use of proceeds therefrom), as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Company (or its Successor Company, as applicable) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Net Leverage Ratio test set forth in Section 4.09(a) hereof or
(B) the Consolidated Net Leverage Ratio for the Company (or its Successor Company, as applicable) and its Restricted Subsidiaries would be less than or equal to such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(v) the Company shall have delivered to the Trustee an Officer’s Certificate stating that such consolidation, merger or transfer is permitted by this Indenture. The Successor Company will succeed to, and be substituted for, such Issuer under this Indenture, the Security Documents, the Guarantees and the Notes, as applicable, and, except in the case of a lease, such Issuer will automatically be released and discharged from its obligations under this Indenture, the Security Documents and the Notes. Notwithstanding clauses (iii) and (iv) of this Section 5.01(a), any Restricted Subsidiary (other than one of the Issuers) may:
(1) consolidate with, merge into or wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company or any Subsidiary; and
(2) merge with an Affiliate of the Company solely for the purpose of reorganizing such Issuer in a state or commonwealth of the United States, the District of Columbia or any territory thereof of for the sole purpose of forming or collapsing a holding company structure in a manner not prohibited by this Indenture.
(b) Subject to Section 11.06, no Guarantor will, and the Company will not permit any such Guarantor to, consolidate or merge with or into or wind up into (whether or not such Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Companysuch Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person organized or existing under the laws of the jurisdiction of organization of such Guarantor, as the case may be, or the laws of the United States, any state or commonwealth thereof, the District of Columbia, Columbia or any territory thereof (such Guarantor or such Person, as the case may be, being herein called the “Successor CompanyPerson”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 2 contracts
Samples: Indenture (Uniti Group Inc.), Indenture (Uniti Group Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may shall not consolidate or merge with or into or wind up into (whether or not the Company is the surviving Personsurvivor in such transaction), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership, limited liability company or trust organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia, Columbia (the Company or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in if the case where Successor Company is a limited liability company, the surviving Person is not Successor Company causes a corporationcorporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia to become a co-obligor issuer of the Notes is and expressly assume all the obligations of the Notes applicable to a corporationco-issuer;
(2ii) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under this Indenture and the Notes and the Security Documents pursuant to a supplemental indentures indenture or other documents or instruments;
(3iii) immediately after such transaction, no Default existsshall have occurred and be continuing;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5iv) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1Section 5.01(b)(B) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6v) the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) . The Successor Company will (if other than the Company) shall succeed to, and be substituted for the Company, as the case may be, under this Indenture and the Notes, and in such event the Company will automatically be released and discharged from its obligation under this Indenture and the Notes. Notwithstanding the foregoing,
foregoing clause (1iii) of this Section 5.01(a), (A) any Restricted Subsidiary that is not a Subsidiary Guarantor of the Company may consolidate or amalgamate with or merge with or into or transfer wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company or any Restricted Subsidiary,
Company; (2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3B) the Company may transfer all consolidate with or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with or into or wind up into an Affiliate of the Company solely for the purpose of reincorporating the Company in a state of the United States, the District of Columbia or any territory thereof thereof, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; andand (C) the Company or any of its Subsidiaries may be converted into, or reorganized or reconstituted as a limited liability company, limited partnership or corporation in a state of the United States, the District of Columbia or any territory thereof.
(b) Subject to Section 10.03, no Subsidiary Guarantor shall, and the Company shall not permit any Subsidiary Guarantor to, consolidate or merge with or into or wind up into (whether or not the Company or a Subsidiary Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless:
(i) (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership or limited liability company organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor, as the case may be, or under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Person”), (B) the Successor Person (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and such Subsidiary Guarantor’s related Guarantee pursuant to supplemental indentures or other documents or instruments, (C) immediately after such transaction, no Default exists, and (D) the Successor Person shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with this Indenture; or
(ii) the transaction is made in compliance with clauses (i) and (ii) of Section 4.06(a) hereof. Except as otherwise provided in this Indenture, the Successor Person (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and such Subsidiary Guarantor’s Guarantee, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and such Subsidiary Guarantor’s Guarantee. Notwithstanding the foregoing, (1) any Subsidiary Guarantor may consolidate with or merge with or into or wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to another Subsidiary Guarantor or the Company, (2) Holdings a Subsidiary Guarantor may consolidate or amalgamate merge with or merge into or wind up or convert into an Affiliate incorporated solely for the Company; provided that if purpose of reincorporating such Subsidiary Guarantor in another state of the United States or the District of Columbia so long as the amount of Indebtedness of the Subsidiary Guarantor is not increased thereby, or (3) a Subsidiary Guarantor may convert into a Person organized or existing under the laws of a jurisdiction in the United States. Clause (iii) of Section 5.01(a) shall not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdingsand its Subsidiaries.
Appears in 2 contracts
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither the Company may not consolidate or nor Parent shall merge with or into into, or amalgamate or consolidate with, or wind up into or undergo an arrangement with (whether or not the Company or Parent, as applicable, is the surviving Personentity), or sell, assign, convey, transfer, lease, convey lease or otherwise dispose of all or substantially all of their properties and assets of Parent and its consolidated properties or assets Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company is continuing, resulting, surviving or transferee Person (the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the “Successor Company”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person (other than an individual) organized or and existing under the laws of the United States, any state thereof, or territory thereof or the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, Company (if other than the CompanyCompany or Parent, as applicable) expressly assumes all of the obligations of the Company or Parent, as applicable, under the Notes and the Security Documents this Indenture pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after giving effect to such transaction, no Default existsor Event of Default shall have occurred and be continuing;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted able to incur Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestSection 4.09(a), or
(B) the Fixed Charge Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater than the Fixed Charge Coverage Ratio such ratio for the Company Parent and its Restricted Subsidiaries immediately prior to such transaction;; and
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company or Parent, as applicable, shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation amalgamation, arrangement, winding up or transfer disposition, and such supplemental indenturesindenture, if any, comply complies with this Indenture.
(b) The . Subject to Section 5.02, the Successor Company will succeed to, and be substituted for for, the Company or Parent, as applicable, under this Indenture Indenture, the Notes and the Notes. Guarantees.
(b) Notwithstanding the foregoing,clauses (3) and (4) of Section 5.01(a):
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor of the Company may consolidate or with, amalgamate with, undergo an arrangement with, merge with or merge into or transfer all or part of its properties and assets to the Company or so long as no Capital Stock of the Restricted Subsidiary of the Company is distributed to any Restricted Subsidiary,Person other than the Company; and
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may consolidate with, amalgamate with, undergo an arrangement with, merge with or into an Affiliate of the Company solely for the purpose of reincorporating the Company in another state or territory of the United States or the District of Columbia.
(c) The Company shall not permit any Subsidiary Guarantor to merge with or into, or amalgamate or consolidate with, or wind up into or undergo an arrangement with (whether or not such Subsidiary Guarantor is the surviving corporation), or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person (other than to Parent, the Company or another Guarantor) unless:
(1) (A) if such entity remains a Guarantor, the continuing, resulting, surviving or transferee Person (the “Successor Guarantor”) is a Person (other than an individual) organized and existing under the same laws as the Guarantor was organized immediately prior to such transaction, the laws of the United States, any state or territory thereof or the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.Columbia;
Appears in 2 contracts
Samples: Indenture (Alliance Resource Partners Lp), Indenture (Alliance Holdings GP, L.P.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate consolidate, amalgamate or merge with or into or wind up into (whether or not the Company Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) the Issuer is a surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Issuer or such Person, as the case may be, being herein called the “Successor Issuer”);
(ii) the Successor Issuer (if other than the Issuer) expressly assumes all the obligations of the Issuer under this Indenture and the Notes pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction no Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Issuer or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Issuer or such Restricted Subsidiary at the time of such transaction), either
(A) the Successor Issuer would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(B) the Fixed Charge Coverage Ratio for the Successor Issuer and its Restricted Subsidiaries would be greater than or equal to such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes;
(vi) if the Successor Issuer is not organized as a corporation after such transaction, a successor corporation which is a Subsidiary of the Successor Issuer shall continue to be co-obligor of the Notes and shall have by supplemental indenture confirmed its obligations under this Indenture and the Notes; and
(vii) the Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Issuer (if other than the Issuer) shall succeed to, and be substituted for, the Issuer under this Indenture and the Notes, and the Issuer shall automatically be released and discharged from its obligations under this Indenture and the Notes, but in the case of a lease of all or substantially all of its assets, the Issuer shall not be released from the obligations to pay the principal of and interest on the Notes. Notwithstanding the foregoing Section 5.01(a)(iii) and (iv), (a) any Restricted Subsidiary may consolidate or amalgamate with, merge into, sell, assign or transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Issuer or to another Restricted Subsidiary and (b) the Issuer may merge, amalgamate or consolidate with an Affiliate incorporated or organized solely for the purpose of incorporating or organizing the Issuer in another state of the United States, the District of Columbia or any territory of the United States so long as the amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not increased thereby (any transaction described in this sentence a “Specified Merger/Transfer Transaction”). This Section 5.01(a) shall not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Issuer and its Restricted Subsidiaries. For purposes of this Section 5.01, 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 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 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.
(b) Subject to Section 10.02(b), each Subsidiary Guarantor shall not, and the Issuer shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactionstransactions to, to any Person unless:
(1i) the Company either
(A) such Subsidiary Guarantor is the a surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Companysuch Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is made is a Person corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia, Columbia or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor CompanyGuarantor”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) and the Successor Company, Guarantor (if other than the Company, such Subsidiary Guarantor) expressly assumes all the obligations of the Company such Subsidiary Guarantor under the Notes this Indenture and the Security Documents such Subsidiary Guarantor’s Guarantee pursuant to a supplemental indentures indenture or other documents or instruments;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant instruments in form reasonably satisfactory to the Fixed Charge Coverage Test, Trustee; or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transactionsale or other disposition or consolidation or merger complies with Section 4.06;
(5ii) each Guarantorimmediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Guarantor or any of its Subsidiaries as a result of such transaction as having been Incurred by the Successor Guarantor or such Subsidiary at the time of such transaction), unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) no Default or Event of Section 5.01(b) hereof shall apply, Default shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes occurred and the Security Documentsbe continuing; and
(6iii) the Company any Successor Guarantor (if other than such Subsidiary Guarantor) shall have delivered or caused to be delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, mergeramalgamation, amalgamation merger or transfer and such supplemental indentures, indenture (if any, ) comply with this Indenture.
(b) . The Successor Company will Guarantor shall succeed to, and be substituted for the Company for, such Subsidiary Guarantor under this Indenture and the Notessuch Subsidiary Guarantor’s Guarantee, and such Subsidiary Guarantor shall automatically be released and discharged from its obligations under this Indenture and such Subsidiary Guarantor’s guarantee. Notwithstanding the foregoing,
Section 5.01(b)(ii), (1i) any Restricted Subsidiary that is not a Subsidiary Guarantor may merge, amalgamate or consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company incorporated or organized solely for the purpose of reincorporating the Company incorporating or organizing such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof of the United States, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries Subsidiary Guarantor is not increased thereby; and
thereby and (2ii) Holdings a Subsidiary Guarantor may merge, amalgamate or consolidate with another Subsidiary Guarantor or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as HoldingsIssuer.
Appears in 2 contracts
Samples: Indenture (Watchguard Registration Services, Inc.), Indenture (Affinion Loyalty Group, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Borrower shall not consolidate or merge with or into or wind up into (whether or not the Company Borrower is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactions, to any Person unless:
(1a) the Company Borrower is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyBorrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Borrower or such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2b) the Successor Company, Company (if other than the Company, Borrower) expressly assumes all the obligations of the Company such company under the Notes this Agreement and the Security other Loan Documents pursuant to supplemental indentures or other documents or instrumentswhich it is a party;
(3c) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction, ) no Default existsor Event of Default shall have occurred and be continuing;
(4d) immediately after giving pro forma effect to such transaction and any related financing transactionstransaction, as if such transactions transaction had occurred at the beginning of the applicable four-quarter period,, either:
(Ai) the Successor Company or the Company would be permitted to incur Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, Total Net Leverage Ratio test set forth in Section 6.1(a); or
(Bii) the Fixed Charge Coverage Total Net Leverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater less than the Fixed Charge Coverage Ratio such ratio for the Company Borrower and its Restricted Subsidiaries immediately prior to such transaction;
(5e) if the Successor Company is an entity other than the Borrower, each Guarantor, Guarantor (unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture a Guarantor Joinder Agreement confirmed that its Guarantee shall apply to such Personthe Successor Company’s obligations under this Indenture, the Notes Agreement and the Security other Loan Documents; and
(6f) the Company Borrower shall have delivered to the Trustee Administrative Agent an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply complies with this Indenture.
(b) Agreement and the other Loan Documents. The Successor Company (if other than the Borrower) will succeed to, and be substituted for for, the Company Borrower under this Indenture Agreement and in such event the Borrower will automatically be released and discharged from its obligations under this Agreement and the Notesother Loan Documents. Notwithstanding clauses (c) and (d) of this Section 6.7, (A) the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor Borrower may consolidate or amalgamate with or with, merge into or transfer sell, assign, transfer, lease, convey or otherwise dispose (including in connection with a liquidation) of all or part of its properties and assets to the Company or any Restricted Subsidiary,
Subsidiary and (2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3B) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Borrower may merge or consolidate with an Affiliate of the Company incorporated or organized solely for the purpose of reincorporating or reorganizing the Company Borrower in another state of the United States, the District of Columbia or any territory thereof of the United States. No Guarantor will, and the Borrower will not permit any Guarantor to, consolidate or merge with or into or wind up into (whether or not such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose (including in connection with a liquidation) of all or substantially all of its properties or assets in one or more related transactions to, any Person (herein called the “Successor Guarantor”) unless (i) the surviving company (or company to which such assets are transferred) in such liquidation, merger, sale, transfer or other disposition is the Borrower or a Guarantor; or (ii):
(1) such sale or disposition or consolidation or merger is not in violation of Section 6.4;
(2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Guarantor or any of its Subsidiaries as a result of such transaction as having been Incurred by the Successor Guarantor or such Subsidiary at the time of such transaction) no Default or Event of Default shall have occurred and be continuing;
(3) the Successor Guarantor (if other than such Guarantor) shall have delivered or caused to be delivered to the Administrative Agent an Officer’s Certificate stating that such consolidation, merger or transfer complies with this Agreement; and
(4) the Successor Guarantor expressly assumes all the obligations of such Guarantor under this Agreement and the other Loan Documents, pursuant to a Guarantor Joinder Agreement. The Successor Guarantor will succeed to, and be substituted for, such Guarantor under this Agreement and such Guarantor’s Guarantee, and such Guarantor will automatically be released and discharged from its obligations under this Agreement and such Guarantor’s Guarantee. Notwithstanding the foregoing, (x) a Guarantor may merge or consolidate with an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing such Guarantor in another state of the United States, the District of Columbia or any territory of the United States, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries Guarantor is not increased thereby; and
, (2y) Holdings a Guarantor may merge or consolidate or amalgamate with or merge transfer all or part of its properties or assets to another Guarantor or the Borrower and (z) a Guarantor may convert into a corporation, partnership, limited partnership, limited liability corporation or trust organized or existing under the Company; provided that if laws of the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days jurisdiction of organization of such guarantee, become a guarantor Guarantor or any of the Notes on the same terms as Holdingsjurisdictions set forth in clause (x) of this sentence.
Appears in 2 contracts
Samples: Credit Agreement (Mueller Water Products, Inc.), Term Loan Credit Agreement (Mueller Water Products, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may shall not consolidate or merge with or into or wind up into (whether or not the Company is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactions, to any Person unless:
(1i) the Company is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a corporation organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Company or such Person, as the case may be, being herein called the "Successor Company");
(ii) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under this Indenture and the Securities pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event of Default exists;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, (A) the Successor Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a) or (B) the Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater than such Ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, if any, unless it is the other party to the transactions described above, in which case Section 5.01(b) shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person's obligations under this Indenture and the Securities; and
(vi) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. The Successor Company shall succeed to, and be substituted for, the Company under this Indenture and the Securities. Notwithstanding the foregoing Section 5.01 (a)(iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company and (b) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.
(b) Each Guarantor, if any, shall not, and the Company shall not permit a Guarantor to, consolidate or merge with or into or wind up into (whether or not such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Guarantor or such Person, as the case may be, being herein called the “"Successor Company”Guarantor"); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, Guarantor (if other than the Company, such Guarantor) expressly assumes all the obligations of the Company such Guarantor under the Notes this Indenture and the Security Documents such Guarantor's Guarantee pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3iii) immediately after such transaction, transaction no Default or Event of Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6iv) the Company Guarantor shall have delivered or caused to be delivered to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, indenture (if any, ) comply with this Indenture.
(b) . The Successor Company will Guarantor shall succeed to, and be substituted for the Company for, such Guarantor under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary such Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings's Guarantee.
Appears in 1 contract
Samples: Indenture (Evenflo Co Inc)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuer shall not consolidate or merge with or into or wind up into (whether or not the Company is the surviving Person)into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation merger or merger wind up (if other than the CompanyIssuer) or the Person to which whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership (including a limited partnership), trust or limited liability company organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia, Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving that, if such Person is not a corporation, another Person that is a corporation organized or existing under such laws becomes a co-obligor of the Notes is a corporationNotes;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under this Indenture and the Notes and the Security Documents pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,:
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, Consolidated Net Leverage Ratio test set forth in Section 4.09(a); or
(B) the Fixed Charge Coverage Consolidated Net Leverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater less than the Fixed Charge Coverage Ratio or equal to such ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;; and
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to; provided that in giving an Opinion of Counsel, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
(1) counsel may rely on an Officer’s Certificate as to any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part matters of its properties and assets fact, including as to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part satisfaction of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) above. The Successor Company shall succeed to, and be substituted for, the Issuer under this Indenture and the Notes and the Issuer shall automatically be released and discharged from its obligations under this Indenture and the Notes except in the case of Section 5.01(aa lease. Notwithstanding the foregoing clauses (3), (4) hereof,and (5), which do not apply to transactions referred to in this sentence:
(1A) any Restricted Subsidiary may consolidate with, merge into or wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, the Issuer or any Restricted Subsidiary, and
(B) the Company Issuer may merge with an Affiliate of the Company Issuer solely for the purpose or effect of reincorporating reorganizing the Company Issuer in a state or commonwealth of the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; andthereof.
(2b) Holdings may No Guarantor shall, and the Issuer shall not permit any such Guarantor to, consolidate or amalgamate merge with or merge into or wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Guarantor is the Company; provided that if surviving Person or the Company has a new direct holding company parent following Person formed by or surviving any such consolidation, amalgamation merger or consolidation that guarantees wind up (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the Senior Credit Facilities, such parent company will, within 30 days laws of the jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes on United States, any state or commonwealth thereof, the same terms District of Columbia or any territory thereof (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Guarantor”);
Appears in 1 contract
Samples: Indenture (Time Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuershall not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) either: (x) the Company Issuer is the surviving Person corporation or (y) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes and the Security Documents this Indenture pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default existsor Event of Default shall have occurred and be continuing;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Company Successor Company, the Issuer and its Restricted Subsidiaries would be greater than the Fixed Charge Coverage Ratio such ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b5.01(c)(1)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such PersonSuccessor Company’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for the Company Issuer, as the case may be, under this Indenture Indenture, the Notes and the NotesGuarantees, as applicable. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and clause (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 1 contract
Samples: Indenture (Laureate Education, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may not No Issuer shall consolidate or merge with or into or wind up into (whether or not the Company is the surviving Person)into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactionstransactions (for the avoidance of doubt, other than the Transactions), to any Person unless:
(1) the Company such Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation merger or merger wind up (if other than the Companysuch Issuer) or the Person to which whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership (including a limited partnership), trust or limited liability company organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia, Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person that, if such Successor Company is not a corporation and there is no other Issuer that at such time is a corporation, another Person that is a corporation organized or existing under such laws becomes a co-obligor of the Notes is a corporationNotes;
(2) the Successor Company, if other than the Companyan Issuer, expressly assumes all the obligations of the Company such Issuer under this Indenture and the Notes and the Security Documents pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,:
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, Consolidated Net Leverage Ratio test set forth in Section 4.09(a); or
(B) the Fixed Charge Coverage Consolidated Net Leverage Ratio for the Successor Company and the Restricted Subsidiaries would be greater less than the Fixed Charge Coverage Ratio or equal to such ratio for the Company Issuers and the Restricted Subsidiaries immediately prior to such transaction;; and
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company Issuers shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to; provided that in giving an Opinion of Counsel, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
(1) counsel may rely on an Officer’s Certificate as to any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part matters of its properties and assets fact, including as to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part satisfaction of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) above. The Successor Company shall succeed to, and be substituted for, the applicable Issuer under this Indenture and the Notes and the applicable Issuer shall automatically be released and discharged from its obligations under this Indenture and the Notes except in the case of Section 5.01(aa lease. Notwithstanding the foregoing clauses (3), (4) hereof,and (5), which do not apply to transactions referred to in this sentence:
(1A) the Company any Restricted Subsidiary may consolidate with, merge into or wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to any Issuer or any Restricted Subsidiary, and
(B) an Issuer may merge with an Affiliate of the Company such Issuer solely for the purpose or effect of reincorporating the Company reorganizing such Issuer in a state or commonwealth of the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; andthereof.
(2b) Holdings may No Guarantor (other than Parent) shall, and the Issuers shall not permit any such Guarantor (other than Parent) to, consolidate or amalgamate merge with or merge into or wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions (for the Company; provided that if avoidance of doubt, excluding the Company has a new direct holding company parent following Transactions), to any Person unless:
(1) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation merger or consolidation that guarantees wind up (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the Senior Credit Facilities, such parent company will, within 30 days laws of the jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes on United States, any state or commonwealth thereof, the same terms District of Columbia or any territory thereof (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Guarantor”);
Appears in 1 contract
Samples: Indenture (CONDUENT Inc)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuer shall not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated the properties or assets of the Issuer and its Subsidiaries taken as a whole, in one or more related transactions, to any Person entity unless:
(1) the Company Issuer is the surviving Person entity or the Person entity formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person an entity organized or existing under the laws of the United StatesStates of America, any state thereof, the District of Columbia, or any territory thereof (the Issuer or such Personentity, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person entity is not a corporation, a co-obligor of the Senior Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes this Indenture and the Security Documents Senior Notes pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Company Successor Company, the Issuer and its Restricted Subsidiaries on a consolidated basis would be greater than the Fixed Charge Coverage such Ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b5.01(c)(1)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Personentity’s obligations under this Indenture, the Notes Indenture and the Security DocumentsSenior Notes; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this IndentureSection 5.01(a).
(b) The Successor Company will shall succeed to, and be substituted for for, the Company Issuer under this Indenture and the Senior Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor, as applicable. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Neither the Parent nor Capital LLC may not consolidate or merge with or into or wind up into (whether or not the Company such Person is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company Parent or Capital LLC, as applicable, is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyParent or Capital LLC) or the Person to which whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership (including a limited partnership), trust or limited liability company organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia, Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that provided, in the case where the surviving of Capital LLC, that if such Person is not a corporation, a co-obligor of the Notes is a corporationcorporation organized or existing under such laws;
(2) the Successor Company, if other than the CompanyParent or Capital LLC, expressly assumes all the obligations of the Company Parent or Capital LLC, as applicable, under this Indenture, the Registration Rights Agreement and the Notes and or the Security Documents Parent’s Guarantee, as applicable pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company Parent, as applicable, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, Consolidated Leverage Ratio test set forth in Section 4.09(a) hereof or
(B) the Fixed Charge Coverage Consolidated Leverage Ratio for the Successor Company or the Parent, as applicable, and its Restricted Subsidiaries would be greater less than the Fixed Charge Coverage Ratio or equal to such ratio for the Company Parent and its Restricted Subsidiaries immediately prior to such transaction;
(5) if the Parent or Capital LLC is not the Successor Company, each GuarantorGuarantor (except each Guarantor that is not a Subsidiary of Capital LLC in the event of a sale of Capital LLC by Parent to a Successor Company), unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Parent shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with this Indenture. The Successor Company will succeed to, and be substituted for, the Parent or Capital LLC, as applicable, under this Indenture, the Registration Rights Agreement, the Guarantees and the Notes or the Parent’s Guarantee, as applicable, and, except in the case of a lease, the Parent or Capital LLC, as applicable, will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) any Restricted Subsidiary (other than the Issuers) may consolidate with, merge into or wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Parent or any Restricted Subsidiary (other than Finance Corp.); and
(2) the Parent or Capital LLC may merge with an Affiliate of the Parent solely for the purpose of reorganizing the Parent or Capital LLC in a state or commonwealth of the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Parent and its Restricted Subsidiaries is not increased thereby.
(b) Finance Corp. may not consolidate or merge with or into or wind up into (whether or not Finance Corp. is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(1) Finance Corp. is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than Finance Corp.) or the Person to whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Restricted Subsidiary of the Parent and a corporation organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor”);
(2) the Successor, if other than Finance Corp., expressly assumes all the obligations of Finance Corp. under this Indenture, the Registration Rights Agreement and the Notes pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists (including that the Successor shall be in compliance with Section 4.19 hereof).
(4) if Finance Corp. is not the Successor, each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(5) the Parent shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation sale, assignment, transfer, lease, conveyance or transfer other disposition and such supplemental indentures, if any, indenture(s) comply with this Indenture.
(b) . The Successor Company will succeed to, and be substituted for for, Finance Corp. under this Indenture, the Company Registration Rights Agreement and the Notes, and, except in the case of a lease, Finance Corp. will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing,
foregoing clause (1) any Restricted Subsidiary that is not a Subsidiary Guarantor 3), Finance Corp. may consolidate or amalgamate with or merge into or transfer wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company or any Restricted Subsidiary,Capital LLC provided that Capital LLC is, at such time, a corporation.
(2c) any Subject to certain limitations described in this Indenture governing release of a Guarantee by a Subsidiary Guarantor, no Subsidiary Guarantor may will, and the Parent will not permit any such Subsidiary Guarantor to, consolidate or amalgamate merge with or merge into or transfer wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or part substantially all of its properties and assets or assets, in one or more related transactions, to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,any Person unless:
(1) (A) such Subsidiary Guarantor is the Company may merge with an Affiliate surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the laws of the Company solely for jurisdiction of organization of such Subsidiary Guarantor, as the purpose case may be, or the laws of reincorporating the Company in the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof so long (such Subsidiary Guarantor or such Person, as the amount of Indebtedness of case may be, being herein called the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.“Successor Person”);
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The None of the Co-Issuers may consolidate or merge with or into, or wind up into (whether or not such Co-Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all its properties or assets in one or more related transactions, to any Person, unless:
(i) such Co-Issuer is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Co-Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia (such Co-Issuer or such Person, as the case may be, being herein called the “Successor Company”);
(ii) the Successor Company may (if other than such Co-Issuer) expressly assumes all the obligations of such Co-Issuer under this Indenture and the Notes pursuant to a supplemental indenture or other documents or instruments in form satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction) no Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either
(A) the Successor Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Debt to EBITDA Ratio test set forth in Section 4.10(a) or
(B) the Debt to EBITDA Ratio for the Successor Company and the Restricted Subsidiaries would be no higher than such ratio for the Issuers and the Restricted Subsidiaries immediately prior to such transaction;
(v) any Guarantor, if applicable, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(vi) the Issuers shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel satisfactory to the Trustee, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture.
(b) Except as provided in Article Ten, no Guarantor may, and the Issuers shall not permit such a Guarantor to, consolidate with or merge with or into or wind up into (whether or not the Company such Guarantor is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactionstransactions to, to any Person unless:
(1i) the Company such Guarantor is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Companysuch Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Guarantor or such Person, as the case may be, being herein called the “Successor CompanyGuarantor”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, Guarantor (if other than the Company, such Guarantor) expressly assumes all the obligations of the Company such Guarantor under the Notes this Indenture and the Security Documents such Guarantor’s Guarantee pursuant to a supplemental indentures indenture or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4iii) immediately after giving pro forma effect to such transaction (and treating any related financing transactions, Indebtedness which becomes an obligation of the Successor Guarantor or any of its Subsidiaries as if a result of such transactions had occurred transaction as having been Incurred by the Successor Guarantor or such Subsidiary at the beginning time of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) no Default or Event of Section 5.01(b) hereof shall apply, Default shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes occurred and the Security Documentsbe continuing; and
(6iv) the Company such Guarantor shall have delivered or caused to be delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of CounselCounsel satisfactory to the Trustee, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, indenture (if any, ) comply with this Indenture.
(bc) The Upon any consolidation or merger of any Co-Issuer, or any transfer of all or substantially all of the assets of any Co-Issuer in accordance with Section 5.01(a), in which such Co-Issuer is not the continuing obligor under the Notes, the Successor Company formed by such consolidation or into which such Co-Issuer is merged or to which the conveyance, lease or transfer is made will succeed to, and be substituted for the Company for, and may exercise every right and power of, such Co-Issuer under this Indenture and the Notes. Notwithstanding Notes with the foregoing,same effect as if such Successor Company had been named therein as such Co-Issuer and such Co-Issuer will be released from the obligation to pay the principal of and interest on the Notes and all of such Co-Issuer’s other obligations and covenants under the Notes and this Indenture, if applicable.
(1d) Notwithstanding clause (iii) or (iv) of Section 5.01(a), (i) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or with, merge into or transfer all or part of its properties and assets to the Company a Co-Issuer or any to another Restricted Subsidiary,
, and (2ii) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Co-Issuer may merge with an any Affiliate of the Company incorporated solely for the purpose of reincorporating the Company or reforming such Co-Issuer in another state of the United States, the District of Columbia or any territory thereof incorporating such Co-Issuer, so long as the amount of Indebtedness of the Company Co-Issuers and its the Restricted Subsidiaries is not increased thereby; and.
(2e) Holdings Notwithstanding Section 5.01(b), a Guarantor may consolidate merge with an Affiliate incorporated solely for the purpose of reincorporating or amalgamate with reforming such Guarantor in another state of the United States, or merge into incorporating such Guarantor, so long as the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days amount of Indebtedness of such guarantee, become a guarantor of the Notes on the same terms as HoldingsGuarantor is not increased thereby.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, thereof or the District of Columbia, Columbia (the Issuer or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person Successor Company is not a corporationcorporation or trust, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under this Indenture, the Notes and the Security Documents pursuant to supplemental indentures or other necessary documents or instrumentsinstruments and causes such amendments, supplements or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by or transferred to the Successor Company, together with such financing statements as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement under the Uniform Commercial Code of the relevant states;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
, (Aa) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
Leverage Ratio test set forth in Section 4.04(a)(1) or (Bb) the Fixed Charge Coverage Leverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater less than or equal to the Fixed Charge Coverage Leverage Ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1Section 5.01(c)(1)(a) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture supplement or other document in respect of the Guarantee Agreement confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for for, the Company Issuer under this Indenture Indenture, the Notes and the NotesSecurity Documents. Notwithstanding the foregoing,foregoing Section 5.01(a)(3) and (4):
(1) any Restricted Non-Guarantor Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and or assets to the Company Issuer or any another Restricted Subsidiary,;
(2) the Issuer or any Subsidiary Guarantor may consolidate or amalgamate with or with, merge into or transfer all or part of its properties and or assets to the Company Issuer or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor), as applicable; and
(3) the Company Issuer may transfer all consolidate or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Issuer in any state of the United States or the District of Columbia.
(c) In addition, the Issuer will not permit any Guarantor to consolidate or merge with or into or wind up into (whether or not such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (a) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the laws of the jurisdiction of organization of such Guarantor or the laws of the United States, any state thereof or the District of Columbia (such Guarantor or any territory thereof so long such Person, as the amount of Indebtedness of case may be, being herein called the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.“Successor Person”);
Appears in 1 contract
Samples: Senior Secured Notes Indenture (Spanish Broadcasting System Inc)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may not Neither the Issuer nor the Parent Guarantor, as applicable, shall consolidate or merge with or into or wind up into (whether transfer or not the Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of lease all or substantially all of its consolidated properties assets to (whether or assets taken not the Issuer or the Parent Guarantor, as a wholeapplicable, in one or more related transactionsis the surviving corporation), to any Person unless:
(1) either: (x) the Company Issuer or the Parent Guarantor, as applicable, is the surviving Person corporation; or (y)
(i) in the case of the Issuer, the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, sale or lease, conveyance or other disposition will have been made, made is a Person corporation organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor CompanyEntity”); provided that in the case where the surviving Person is not a corporation) expressly assumes, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee, all obligations of the Issuer under the Notes and this Eleventh Supplemental Indenture as if such Successor Entity were a party to this Eleventh Supplemental Indenture; and (ii) in the case of the Parent Guarantor, the Successor Entity assumes the Parent Guarantor’s obligations under this Eleventh Supplemental Indenture and the Guarantee, as if such Successor Entity were an original party to this Eleventh Supplemental Indenture and such Guarantee;
(2) after giving effect to 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;
(3) immediately after if, as a result of any such transactionconsolidation or merger or such conveyance, no Default exists;transfer or lease, properties or assets of the Issuer or the Parent Guarantor, as applicable, would become subject to a mortgage, pledge, lien, security interest or other encumbrance that would not be permitted by this Eleventh Supplemental Indenture, the Issuer or the Parent Guarantor, as applicable, or such Successor Entity or Person, as the case may be, shall take such steps as shall be necessary effectively to secure all the Notes or the Guarantee, as applicable, equally and ratably with (or prior to) all indebtedness secured thereby; and,
(4) immediately after giving pro forma effect to such transaction and any related financing transactionsthe Issuer or the Parent Guarantor, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Testapplicable, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indenturesindenture, if any, comply with this Eleventh Supplemental Indenture and, if a supplemental indenture is required in connection with such transaction, such supplement shall comply with the applicable provisions of this Eleventh Supplemental Indenture.
(b) The Successor Company will Entity shall succeed to, and be substituted for the Company Issuer or the Parent Guarantor, as applicable, as the case may be, under this Eleventh Supplemental Indenture and the NotesNotes or the Guarantee, each as applicable. Notwithstanding the foregoingclause (3) of Section 5.01(a) hereof,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,Issuer, and
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Issuer may merge with an Affiliate of the Company Issuer, as the case may be, solely for the purpose of reincorporating the Company Issuer in a State of the United StatesStates or any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Holdings shall not consolidate or merge with or into or wind up into (whether or not the Company Holdings is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactionstransactions to, to any Person unless:
(1i) the Company Holdings is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyHoldings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (Holdings or such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, Company (if other than the Company, Holdings) expressly assumes all the obligations of the Company Holdings under this Indenture and the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3iii) immediately after giving effect to such transaction, transaction no Default existsshall have occurred and be continuing;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactionstransaction, as if such transactions transaction had occurred at the beginning of the applicable four-quarter period,period (and treating any Indebtedness which becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), either
(A) the Successor Company or the Company would be permitted to incur Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, Ratio test set forth in Section 4.03(a); or
(B) the Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater than the Fixed Charge Coverage Ratio for the Company Holdings and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6v) the Company Holdings shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Company shall succeed to, and be substituted for, Holdings under this Indenture and its Guarantee and, in the case of the sale by Holdings of all or substantially all of its properties or assets, Holdings, the Guarantors and the Issuers shall be released from the obligation to guarantee, or, to pay, if applicable, the principal of and interest on the Notes. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to Holdings or to another Restricted Subsidiary, and (b) Holdings may merge with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States so long as the amount of Indebtedness of Holdings and its Restricted Subsidiaries is not increased thereby.
(b) An Issuer will not, and Holdings will not permit an Issuer to, consolidate, or merge or amalgamate with or into or wind up into (whether or not such Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless:
(i) such Issuer is the surviving entity or the Person formed by or surviving any such consolidation, merger or amalgamation (if other than such Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited liability company or unlimited liability company organized and existing under the laws of Canada or the laws of any political subdivision thereof or the laws of the United States of America, any state thereof or the District of Columbia, or any territory thereof (such Issuer or such Person, as the case may be, being herein called, a “Successor Issuer”);
(ii) a Successor Issuer (if other than such Issuer) expressly assumes, all the obligations of such Issuer under this Indenture and the Notes pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of a Successor Issuer as a result of such transaction as having been Incurred by such Successor Issuer at the time of such transaction), no Default shall have occurred and be continuing; and
(iv) Holdings shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or amalgamation, transfer and such supplemental indentures, indenture (if any, ) comply with this Indenture.
(b) The . A Successor Company Issuer will be the successor to the predecessor Issuer and shall succeed to, and be substituted for for, and may exercise every right and power of, the Company predecessor Issuer under this Indenture Indenture, and the predecessor Issuer, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Notes. Notwithstanding the foregoing,
foregoing clause (1) any Restricted Subsidiary that is not a Subsidiary Guarantor iii), an Issuer may consolidate or with, merge into, amalgamate with or merge into or transfer all or part of its properties property and assets to the Company Holdings or any a Restricted Subsidiary,.
(2c) Holdings shall not permit any Subsidiary Guarantor may to consolidate or amalgamate merge with or merge into or transfer wind up into (whether or not such Subsidiary Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or part substantially all of its properties or assets in one or more related transactions to, any Person (other than any such sale, assignment, transfer, lease, conveyance or disposition in connection with the Recapitalization described in the Offering Circular) unless:
(i) such Subsidiary Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership or limited liability company organized and assets existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”);
(ii) the Successor Guarantor (if other than such Guarantor) expressly assumes all the obligations of such Guarantor under this Indenture and such Guarantors’ Guarantee pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Company Trustee;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Guarantor or any of its Subsidiaries as a result of such transaction as having been Incurred by the Successor Guarantor or such Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor)at the time of such transaction) no Default shall have occurred and be continuing; and
(3iv) the Company may Successor Guarantor (if other than such Subsidiary Guarantor) shall have delivered or caused to be delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. The Successor Guarantor shall succeed to, and be substituted for, such Guarantor under this Indenture and such Guarantor’s Guarantee and, in the case of the sale by such Guarantor of all or part substantially all of its property properties or assets assets, such Guarantor shall be released from its obligations to a Subsidiary Guarantorguarantee, or, to pay, if applicable, the principal of, or interest on, the Notes. Notwithstanding clauses the foregoing clause (3) and (4) of Section 5.01(a) hereof,
iii), (1) the Company a Guarantor may merge with an Affiliate of the Company incorporated solely for the purpose of reincorporating the Company such Guarantor in another state of the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries Guarantor is not increased thereby; and
thereby and (2) Holdings a Guarantor may consolidate merge with another Guarantor or an Issuer. In addition, notwithstanding the foregoing, any Guarantor may consolidate, amalgamate or merge with or merge into the Companyor wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Permitted Transfer”) to (x) Holdings or any Guarantor or (y) any Restricted Subsidiary of Holdings that is not a Guarantor; provided that if at the Company has a new direct holding company parent following time of each such consolidation, amalgamation or consolidation that guarantees Permitted Transfer pursuant to clause (y) the Senior Credit Facilities, aggregate amount of all such parent company will, within 30 days of such guarantee, become a guarantor Permitted Transfers since the Issue Date shall not exceed 5.0% of the Notes Total Assets as shown on the same terms as Holdingsmost recent available balance sheet of Holdings and the Restricted Subsidiaries after giving effect to each such Permitted Transfer and including all Permitted Transfers occurring from and after the Issue Date (excluding Permitted Transfers in connection with the Recapitalization described in the Offering Circular).
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may not Issuer shall not, directly or indirectly, in a single transaction or a series of related transactions, (a) consolidate or merge with or into or wind up into (whether or not the Company is the surviving another Person), or sell, assignlease, transfer, lease, convey or otherwise dispose of or assign all or substantially all of its consolidated properties the assets of the Issuer or assets the Issuer and the Restricted Subsidiaries (taken as a whole) or (b) adopt a Plan of Liquidation unless, in one either case:
(1) either:
(A) the Issuer shall be the surviving or more related transactionscontinuing Person; or
(B) the Person formed by or surviving such consolidation or merger or to which such sale, to lease, conveyance or other disposition shall be made (or, in the case of a Plan of Liquidation, any Person to which assets are transferred) (collectively, the “Successor”) is a corporation, limited liability company or limited partnership organized and existing under the laws of any State of the United States of America or the District of Columbia, and the Successor expressly assumes, by agreements in form and substance reasonably satisfactory to the Trustee, all of the obligations of the Issuer under the Notes and this Indenture;
(2) immediately prior to and immediately after giving effect to such transaction and the assumption of the obligations as set forth in clause (1)(B) above and the incurrence of any Indebtedness to be incurred in connection therewith, and the use of any net proceeds therefrom on a pro forma basis, no Default shall have occurred and be continuing; and
(3) immediately after and giving effect to such transaction and the assumption of the obligations set forth in clause (1)(B) above and the incurrence of any Indebtedness to be incurred in connection therewith, and the use of any net proceeds therefrom on a pro forma basis, the Issuer or the Successor, as the case may be, either (a) could incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception or (b) would have a Consolidated Interest Coverage Ratio equal to or greater than the Issuer’s Consolidated Interest Coverage Ratio immediately prior to such transaction. For purposes of this covenant, any Indebtedness of the Successor which was not Indebtedness of the Issuer immediately prior to the transaction shall be deemed to have been incurred in connection with such transaction.
(b) Except as provided in Section 10.1, no Guarantor may consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, unless:
(1) the Company is either:
(a) such Guarantor shall be the surviving Person or continuing Person; or
(b) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than is another Guarantor or assumes, by agreements in form and substance reasonably satisfactory to the Company) or to which such saleTrustee, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws all of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company such Guarantor under the Notes Note Guarantee of such Guarantor and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following immediately after giving effect to such consolidationtransaction, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor no Default shall have occurred and be continuing. For purposes of the Notes on foregoing, the same terms as Holdingstransfer (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 Equity Interests of which constitute all or substantially all of the properties and assets of the Issuer, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.
Appears in 1 contract
Samples: Indenture (ExamWorks Group, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer and Parent may not consolidate or merge with or into or wind up into (whether or not the Company Issuer or Parent is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company Issuer or Parent is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer or Parent, as applicable) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership, limited liability company or trust organized or existing under the laws of the United States, any state thereof, thereof or the District of ColumbiaColumbia (the Issuer, Parent or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, if other than the CompanyIssuer or Parent, as applicable, expressly assumes all the obligations of the Company Issuer or Parent under the Notes Notes, the Guarantee, this Indenture and the Security Documents pursuant to a supplemental indentures indenture or other documents document or instrumentsinstrument;
(3iii) immediately after such transaction, no Default existsshall have occurred and be continuing;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,, either:
(A) the Successor Company or the Company Parent would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, orRatio test set forth in Section 4.03(a); or
(B) the Fixed Charge Coverage Ratio for the Company Parent and its Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Parent and its Restricted Subsidiaries immediately prior to such transaction;
(5v) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1Section 5.01(a)(ii) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture or other document or instrument confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(vi) the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger winding up, sale, assignment, transfer, lease, conveyance or other disposal and such supplemental indentures, if any, comply with this Indenture and all conditions precedent provided for in this Indenture relating to such transaction have been complied with. The Successor Company (if other than Parent or the Issuer) shall succeed to, and be substituted for Parent or the Issuer under this Indenture, the Notes and the Security DocumentsNotes Guarantee, as applicable, and in such event Parent or the Issuer will automatically be released and discharged from its obligation under this Indenture, the Notes and the Guarantee, as applicable. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01(a), (A) any Restricted Subsidiary may consolidate with or merge with or into or wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to Parent or the Issuer; and(B) the Issuer or Parent may consolidate with or merge with or into or wind up into an Affiliate of Parent solely for the purpose of redomiciling the Issuer or Parent, as applicable, in a state of the United States, the District of Columbia or any territory thereof, so long as the amount of Indebtedness of Parent and its Restricted Subsidiaries is not increased thereby; (C) Parent or any of its Subsidiaries may be converted into, or reorganized or reconstituted as a limited liability company, limited partnership or corporation in a state of the United States, the District of Columbia or any territory thereof; and (D) the Issuer or Parent may change its name.
(6b) Subject to Section 10.03, no Subsidiary Guarantor shall, and Parent shall not permit any Subsidiary Guarantor to, consolidate or merge with or into or wind up into (whether or not the Issuer or a Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless:
(i) (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership or limited liability company organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor, as the case may be, or under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Person”), (B) the Company Successor Person (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture, such Subsidiary Guarantor’s related Guarantee and the Security Documents pursuant to supplemental indentures or other documents or instruments, (C) immediately after such transaction, no Default exists, and (D) the Successor Person shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation winding up, sale, assignment, transfer, lease, conveyance or transfer other disposal and such supplemental indentures, if any, comply with this Indenture.Indenture and all conditions precedent provided for in this Indenture relating to such transaction have been complied with; or
(bii) The the transaction is made in compliance with clauses (i) and (ii) of Section 4.06(a) hereof. Except as otherwise provided in this Indenture, the Successor Company Person (if other than such Subsidiary Guarantor) will succeed to, and be substituted for the Company for, such Subsidiary Guarantor under this Indenture and the Notessuch Subsidiary Guarantor’s Guarantee, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and such Subsidiary Guarantor’s Guarantee. Notwithstanding the foregoing,
, (1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge with or into or transfer wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to another Guarantor or to the Company or any Restricted Subsidiary,
Issuer, (2) any a Subsidiary Guarantor may consolidate or amalgamate merge with or merge into or transfer all wind up or part convert into an Affiliate for the purpose of its properties and assets to reincorporating such Subsidiary Guarantor in another state of the Company United States or the District of Columbia, (3) a Subsidiary Guarantor may convert into a Person organized or existing under the laws of a jurisdiction in the United States, (or to a Restricted Subsidiary if that Restricted Subsidiary becomes 4) a Subsidiary GuarantorGuarantor may liquidate or dissolve or change its legal form if Parent determines in good faith that such action is in the best interests of Parent and is not materially disadvantageous to the Holders of the Notes or (5) a Guarantor may change its name. Clauses (ii); and
, (3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses iii), (3iv) and (4v) of Section 5.01(a) hereof,
(1) shall not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among Parent and the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as HoldingsSubsidiaries.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuer shall not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated the properties or assets of the Issuer and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, limited liability company or limited partnership organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof thereof; provided that if such Person is not a corporation, such Person shall be required to cause a subsidiary of such Person that is a corporation to be a co-obligor of the Notes (such Person, as the case may be, being herein called the “Successor CompanyIssuer”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor CompanyIssuer, if other than the CompanyIssuer, expressly assumes all the obligations of such Issuer under this Indenture, the Company under Registration Rights Agreement, the Notes and the Security Documents pursuant to supplemental indentures or other documents, agreements or instruments in form reasonably satisfactory to the Trustee and shall cause such amendments, supplements or other instruments to be executed, filed, and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by or transferred to the Successor Issuer, together with such financing statements or 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 instrumentsa similar document under the Uniform Commercial Code or other similar statute or regulation of the relevant states or jurisdictions;
(3) immediately after such transaction, transaction no Default or Event of Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactionstransaction, as if such transactions transaction had occurred at the beginning of the applicable four-quarter period,
, either (Ai) the Successor Company or the Company Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
Consolidated Leverage Ratio test set forth in Section 3.2(a) or (Bii) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transactionRatings Condition is satisfied;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (11)(b) of Section 5.01(b10.2(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, Indenture and the Notes and its obligations under the Security Documents; andDocuments shall continue to be in effect and shall cause such amendments, supplements or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by such Guarantor, together with such financing statements or 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 Uniform Commercial Code or other similar statute or regulation of the relevant states or jurisdictions;
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this IndentureIndenture and, if a supplemental indenture or any supplement to any Security Document is required in connection with such transaction, such supplement shall comply with the applicable provisions of this Indenture and the Security Documents;
(7) to the extent any assets of the Person which is merged or consolidated with or into the Successor Issuer are assets of the type which would constitute Collateral under the Security Documents, the Successor Issuer will take such other actions as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required in this Indenture or any of the Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the Security Documents; and
(8) the Collateral owned by or transferred to the Successor Issuer shall:
(a) continue to constitute Collateral under this Indenture and the Security Documents,
(b) be subject to the Lien in favor of the Collateral Agent for the benefit of the Collateral Agent, the Trustee and the Holders of the Notes; and
(c) not be subject to any Lien other than Permitted Liens.
(b) The Successor Company Issuer will succeed to, and be substituted for the Company such Issuer under this Indenture and the Notes and the Issuer (if not the Successor Issuer) will be fully released from its obligations under this Indenture, the Notes and the Security Documents but, in the case of a lease of all or substantially all its assets, the Issuer will not be released from the obligation to pay the principal of and interest on the Notes. .
(c) The Issuer shall not, directly or indirectly, lease all or substantially all of the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(d) Notwithstanding the foregoingSections 4.1(a)(3) and (a)(4),
(1a) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or with, merge into or transfer all or part of its properties and assets to the Company Issuer or any Restricted Subsidiary,;
(2b) any Subsidiary Guarantor may consolidate or amalgamate with or with, merge into or transfer all or part of its properties and assets to the Company Issuer or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and;
(3c) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Issuer may merge with an Affiliate of the Company incorporated solely for the purpose of reincorporating the Company Issuer in another State of the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2d) Holdings the Assumption shall be permitted.
(e) For purposes of this Section 4.1, 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 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 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.
(f) Notwithstanding anything to the contrary in this Indenture, any Subsidiary with a value of less than $250,000 may consolidate liquidate or amalgamate with dissolve or merge into the Company; provided that change its legal form if the Company has a new direct holding company parent following Issuer determines in good faith that such consolidation, amalgamation or consolidation that guarantees action is in the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor best interests of the Notes on Issuer and its Subsidiaries and is not materially disadvantageous to the same terms as Holdingsinterests of the Holders of Notes.
Appears in 1 contract
Samples: Indenture (RDA Holding Co.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuer shall not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) either: (x) the Company Issuer is the surviving Person corporation or (y) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, Columbia or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes and the Security Documents this Indenture pursuant to supplemental indentures or other documents or instrumentsinstruments reasonably satisfactory to the Trustee (and, for the avoidance of doubt, the obligations to pay Special Interest in accordance herewith and the Confirmation Letters);
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Company Successor Company, the Issuer and its Restricted Subsidiaries would be greater than the Fixed Charge Coverage Ratio such ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b5.01(c)(1)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such PersonSuccessor Company’s obligations under this IndentureIndenture and the Notes (and, for the avoidance of doubt, the Notes obligations to pay Special Interest in accordance herewith and the Security DocumentsConfirmation Letters); and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for the Company Issuer, as the case may be, under this Indenture Indenture, the Notes and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary GuarantorGuarantees, as applicable. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 1 contract
Samples: Indenture (Laureate Education, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuer shall not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership, limited liability company or trust organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia, Columbia (the Issuer or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”’’); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes this Indenture and the Security Documents Securities pursuant to a supplemental indentures indenture or other documents or instruments;
(3iii) immediately after such transaction, no Default existsshall have occurred and be continuing;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,, either:
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, Ratio test set forth in Section 4.03(a); or
(B) the Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5v) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1Section 5.01(b)(i)(B) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsSecurities; and
(6vi) the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) . The Successor Company will (if other than the Issuer) shall succeed to, and be substituted for the Company Issuer, as the case may be, under this Indenture and the NotesSecurities, and in such event the Issuer will automatically be released and discharged from its obligation under this Indenture and the Securities. Notwithstanding the foregoing,
foregoing clauses (1iii) and (iv) of this Section 5.01(a), (A) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge with or into or transfer wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company or any Restricted Subsidiary,
Issuer; (2B) any Subsidiary Guarantor the Issuer may consolidate or amalgamate with or merge with or into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with wind up into an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Issuer in a state of the United States, the District of Columbia or any territory thereof thereof, so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; andand (C) the Issuer or any of its Subsidiaries may be converted into, or reorganized or reconstituted as a limited liability company, limited partnership or corporation in a state of the United States, the District of Columbia or any territory thereof.
(b) Subject to Section 10.03, no Subsidiary Guarantor shall, and the Issuer shall not permit any Subsidiary Guarantor to, consolidate or merge with or into or wind up into (whether or not the Issuer or a Subsidiary Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person (other than any such sale, assignment, transfer, lease, conveyance or disposition in connection with the Transactions described in the Offering Memorandum) unless:
(i) (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership or limited liability company organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor, as the case may be, or under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Person”), (B) the Successor Person (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and such Subsidiary Guarantor’s related Guarantee pursuant to supplemental indentures or other documents or instruments, (C) immediately after such transaction, no Default exists, and (D) the Successor Person shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with this Indenture; or
(ii) the transaction is made in compliance with clauses (i) and (ii) of Section 4.06(a) hereof. Except as otherwise provided in this Indenture, the Successor Person (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and such Guarantor’s Guarantee, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and such Subsidiary Guarantor’s Guarantee. Notwithstanding the foregoing, (1) any Subsidiary Guarantor may consolidate with or merge with or into or wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to another Subsidiary Guarantor or the Issuer, (2) Holdings a Subsidiary Guarantor may consolidate or amalgamate merge with or merge into or wind up or convert into an Affiliate incorporated solely for the Company; provided that if the Company has a new direct holding company parent following purpose of reincorporating such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor Subsidiary Guarantor in another state of the Notes on United States or the same terms District of Columbia so long as Holdingsthe amount of Indebtedness of the Subsidiary Guarantor is not increased thereby, or (3) a Subsidiary Guarantor may convert into a Person organized or existing under the laws of a jurisdiction in the United States. Clauses (iii) and (iv) of Section 5.01(a) shall not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Issuer and the Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Hillman Companies Inc)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into into, consummate a Division as the Dividing Person (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of (including, in each case, by way of Division) all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation amalgamation, merger or merger Division (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer, as the case may be, or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, if other than the Company, Issuer expressly assumes all the obligations of the Company Issuer under this Indenture and the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3iii) immediately after such transaction, no Default exists;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,:
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, ; or
(B) the Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5v) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1i)(B) of Section 5.01(b5.01(e) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6vi) the Issuer or, if applicable, the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation Division or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for the Company Issuer under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding , as applicable, and the foregoing,Issuer will automatically be released and discharged from its obligations under this Indenture, the Guarantees and the Notes.
(1c) Notwithstanding clauses (iii) and (iv) of Section 5.01(a) hereof:
(i) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge with or into or consummate a Division as the Dividing Person or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company Issuer or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3ii) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Issuer may merge with an Affiliate of the Company Issuer, or consummate a Division as the Dividing Person with an Affiliate of the Issuer solely for the purpose of reorganizing or reincorporating the Company Issuer in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2d) Holdings may [Reserved]
(e) Subject to Section 10.06 hereof, no Subsidiary Guarantor shall, and the Issuer shall not permit any Subsidiary Guarantor to, consolidate or amalgamate merge with or merge into or wind up into or consummate a Division as the Company; provided that if Dividing Person (whether or not such Subsidiary Guarantor is the Company has a new direct holding company parent following surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of (including, in each case, by way of Division) all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(i) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation amalgamation, merger or consolidation that guarantees Division (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the Senior Credit Facilities, such parent company will, within 30 days laws of the jurisdiction of organization of such guaranteeGuarantor, become a guarantor as applicable, or the laws of the Notes on United States, any state thereof, the same terms District of Columbia, or any territory thereof (such surviving Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company. The Company may not consolidate or merge with or into or wind up into (whether or not the Company is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated the properties or assets of the Company and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia, or any territory thereof Columbia (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under this Indenture, the Registration Rights Agreement, the Notes and the Security Documents pursuant to supplemental indentures or other documents documents, agreements or instruments;
(3) immediately after such transaction, transaction no Default or Event of Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactionstransaction, as if such transactions transaction had occurred at the beginning of the applicable four-quarter period,
, either (Ai) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
Ratio test set forth in Section 4.09(a) hereof or (Bii) the Fixed Charge Coverage Ratio for the Company would be the same or greater than the Fixed Charge Coverage Ratio for the Company immediately prior to as a result of such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and and, except in the case of a merger of a Restricted Subsidiary into the Company, an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture and, if a supplemental indenture or any supplement to any Security Document is required in connection with such transaction, such supplement shall comply with the applicable provisions of this Indenture;
(6) to the extent any assets of the Person which is merged or consolidated with or into the Successor Company are assets of the type which would constitute Collateral under the Security Documents, the Successor Company will take such other actions as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required in this Indenture or any of the Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the Security Documents; and
(7) the Collateral owned by or transferred to the Successor Company shall:
(A) continue to constitute Collateral under this Indenture and the Security Documents,
(B) continue to be subject to the Lien in favor of the Collateral Trustee for the benefit of the Collateral Trustee, the Trustee and the Holders of the Notes; and
(C) not be subject to any Lien other than Permitted Liens.
(b) The Successor Company will succeed to, and be substituted for the Company under this Indenture and the Notes and the Company (if not the Successor Company) will be fully released from its obligations under this Indenture, the Notes and the Security Documents but, in the case of a lease of all or substantially all its assets, the Company will not be released from the obligation to pay the principal of and premium, if any, interest and Additional Interest, if any, on the Notes. .
(c) Notwithstanding the foregoingclauses (3) and (4) of Section 5.01(a) hereof (and without compliance therewith),
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or with, merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,;
(2) any Subsidiary Guarantor may consolidate or amalgamate with or with, merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); , and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company incorporated solely for the purpose of reincorporating the Company in another State of the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Borrower will not consolidate or merge with or into or wind up into (whether or not the Company Borrower is the surviving corporation) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless:
(i) the Borrower is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership or limited liability company organized or existing under the laws of the United States (the Borrower or such Person, as the case may be, being herein called the “Successor Borrower”)
(ii) the Successor Borrower (if other than the Borrower) expressly assumes all the obligations of the Borrower under this Agreement pursuant to a such documents or instruments in form reasonably satisfactory to the Administrative Agent;
(iii) all of the Guarantees of the Obligations and the other Secured Obligations, and related security, remain in full force and effect or replacement guarantees and security reasonably satisfactory to the Administrative Agent are provided;
(iv) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Borrower or any of its Subsidiaries as a result of such transaction as having been Incurred by the Successor Borrower or such Subsidiary at the time of such transaction) no Default or Event of Default shall have occurred and be continuing;
(v) Intentionally Blank;
(vi) each party to the Guarantees, unless they are the other party to the transactions described above, will have by supplemental Security Documents and guarantees confirmed that such securities and guarantees will apply to such Person’s obligations under the Guarantees (or, such parties will have entered into guarantees in form and substance substantially the same as the Guarantees); and
(vii) the Borrower will have delivered to the Administrative Agent an Officers’ Certificate and an opinion of counsel stating that such consolidation, merger or transfer and such supplemental guarantees (if any) and supplemental Security Documents comply with this Agreement and applicable requirements of Law. The Successor Borrower shall succeed to, and be substituted for, the Borrower under this Agreement and such Security Documents. Notwithstanding the foregoing Sections 7.07(a)(iii) and 7.07(a)(v) any Subsidiary or Unrestricted Subsidiary of the Borrower may consolidate with, merge into or transfer all or part of its properties and assets to the Borrower or to another Subsidiary of the Borrower; provided, however that if an Unrestricted Subsidiary merges, transfers or otherwise consolidates all or part of its properties with or to the Borrower or any Subsidiary of the Borrower, such Unrestricted Subsidiary shall cease to be designated as an Unrestricted Subsidiary.
(b) The Borrower shall not permit any Subsidiary to consolidate or merge with or into or wind up into (whether or not such Subsidiary is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactionstransactions to, to any Person (including without limitation an Unrestricted Subsidiary) unless:
(1i) the Company such Subsidiary is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Companysuch Subsidiary) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership or limited liability company organized or existing under the laws of any state of the United States, any state thereof, the District of Columbia, or any territory thereof States (such Person, as the case may beSubsidiary, being herein called the “Successor CompanyGuarantor”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, Guarantor (if other than the Company, such Subsidiary) expressly assumes all the obligations of the Company such Subsidiary under the Notes this Agreement and the such Guarantor’s Guarantee and related security pursuant to a supplemental Security Documents pursuant to supplemental indentures or and other documents or instrumentsinstruments in form reasonably satisfactory to the Administrative Agent;
(3) immediately after such transaction, no Default exists;
(4iii) immediately after giving pro forma effect to such transaction (and treating any related financing transactions, Indebtedness which becomes an obligation of the Successor Guarantor or any of its Subsidiaries as if a result of such transactions had occurred transaction as having been Incurred by the Successor Guarantor or such Subsidiary at the beginning time of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) no Default or Event of Section 5.01(b) hereof shall apply, Default shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes occurred and the Security Documentsbe continuing; and
(6iv) the Company Subsidiary shall have delivered or caused to be delivered to the Trustee Administrative Agent an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, Security Documents comply with this Indenture.
(b) Agreement and applicable requirements of Law. The Successor Company will Guarantor shall succeed to, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilitiesfor, such parent company will, within 30 days of Guarantor under such guarantee, become a guarantor of the Notes on the same terms as HoldingsGuarantor’s Guarantee and Security Documents (if any).
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may not not, directly or indirectly, consolidate or merge with or into or wind up into (whether or not the Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated the Company’s properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company is the surviving Person entity or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, is a Person corporation, partnership (including a limited partnership), trust or limited liability company organized or existing under the laws of the jurisdiction of organization of the Company or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person Successor Company is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents Collateral Documents, pursuant to supplemental indentures or other documents or instruments, and the Registration Rights Agreement if the exchange offer contemplated therein has not been consummated or if the Company continues to have an obligation to file or maintain the effectiveness of a shelf registration statement as provided under such agreement;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company Successor Company, as applicable, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Company (or, if applicable, the Successor Company) and its Restricted Subsidiaries would be greater than the Fixed Charge Coverage such Ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Subsidiary Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b5.01(c)(1)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Notes, the Collateral Documents and the Security Documents; andRegistration Rights Agreement if the exchange offer contemplated therein has not been consummated or if the Company continues to have an obligation to file or maintain the effectiveness of a shelf registration statement as provided under such agreement;
(6) the Company (or, if applicable, the Successor Company) shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture;
(7) the Collateral transferred to the Successor Company will (a) continue to constitute Collateral under this Indenture and the Collateral Documents with the same relative priorities as existed immediately prior to such transaction, (b) be subject to the Lien in favor of the Notes Collateral Agent for the benefit of the Secured Parties, and (c) not be subject to any Lien, other than Liens permitted by the terms of this Indenture; and
(8) to the extent that the assets of the Person which is merged or consolidated with or into the Successor Company are assets of the type which would constitute Collateral under the Collateral Documents, the Successor Company will take such actions as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Collateral Documents in the manner and to the extent required in this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for the Company Company, as the case may be, under this Indenture Indenture, the Guarantees, the Notes, the Collateral Documents and the NotesRegistration Rights Agreement as applicable. Notwithstanding the foregoingclauses (3) and (4) of Section 5.01(a) hereof,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(12) the Company may merge with an Affiliate of the Company Company, as the case may be, solely for the purpose of reincorporating the Company in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and.
(2c) Holdings may Subject to Section 11.06 hereof, no Subsidiary Guarantor shall, and the Company shall not permit any Subsidiary Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not such Subsidiary Guarantor is the Company; provided that surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Guarantor is the surviving entity or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership, trust or limited liability company organized or existing under the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees laws of the Senior Credit Facilities, such parent company will, within 30 days jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes on United States, any state thereof, the same terms District of Columbia, or any territory thereof (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may not consolidate or merge with or into or wind up into (whether or not the Company is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactions, to any Person unless:
(1i) the Company is resulting, surviving or transferee Person (the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the "Successor Company") or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or and existing under the laws of the United StatesStates of America, any state State thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporationthereof;
(2ii) the Successor Company, Company (if other than the Company, ) expressly assumes all the obligations of the Company under this Agreement and the Notes by executing and delivering to the Security Documents pursuant Purchasers an amendment to supplemental indentures this Agreement or other documents or instrumentsinstruments in form reasonably satisfactory to the Purchasers;
(3) immediately after such transaction, no Default exists;
(4iii) immediately after giving pro forma effect to such transaction (and treating any related financing transactionsIndebtedness which becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving effect to such transaction, as if such transactions transaction had occurred at the beginning of the applicable four-quarter period,
, either (A) the Successor Company or the Company would be permitted to incur Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
fixed charge coverage ratio test set forth in the first sentence of Section 8.3 or (B) the Fixed Charge Coverage Ratio Ratio, or the Adjusted Fixed Charge Coverage Ratio, as applicable, for the Successor Company and its Restricted Subsidiaries would be greater than the Fixed Charge Coverage Ratio or equal to such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;; and
(5v) each Guarantor, unless it is a Subsidiary Guarantor that is they are the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered an amendment to this Agreement or other document or instrument in form reasonably satisfactory to the Trustee an Officer’s Certificate and an Opinion of CounselPurchasers, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) confirming its Note Guarantee; The Successor Company will succeed to, and be substituted for for, and may exercise every right and power of, the Company under this Indenture Agreement and the Notes, and thereafter the predecessor Company shall be relieved of all obligations and covenants under this Agreement, except that the predecessor Company in the case of a lease of all or substantially all its assets will not be released from the obligation to pay the principal of and interest on the Notes. Notwithstanding the foregoing,
Clauses (1iii) and (iv) of this Section 8.14(a) shall not apply to any transaction in which, (i) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge consolidates with, merges into or transfer transfers all or part of its properties and assets to the Company or any to another Restricted Subsidiary,
Subsidiary or (2ii) any Subsidiary Guarantor may consolidate or amalgamate the Company merges with or merge into or transfer transfers all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely incorporated or organized for the purpose of reincorporating or reorganizing the Company in another State of the United States, the District States of Columbia America or any territory thereof changing its legal structure so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and.
(2b) Holdings may Subject to Section 11.2(b) hereof governing the release of a Note Guarantee upon the sale or disposition of a Guarantor that is a Subsidiary of the Company, ASG will not, and the Company will not permit ASG to, consolidate or amalgamate merge with or merge into or wind up into (whether or not ASG is the Company; provided that surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) the resulting, surviving or transferee Person (the "Successor Guarantor") is a Person organized and existing under the laws of the United States of America, any State thereof, the District of Columbia, or any territory thereof;
(ii) the Successor Guarantor (if other than such Guarantor) expressly assumes all the Company has obligations of ASG under this Agreement and ASG's Note Guarantee by executing and delivering to the Purchasers an amendment to this Agreement or other documents or instruments in form reasonably satisfactory to the Purchasers;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Guarantor or any of its Subsidiaries as a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days result of such guaranteetransaction as having been Incurred by the Successor Guarantor or such Subsidiary at the time of such transaction), become a guarantor no Default or Event of Default shall have occurred and be continuing; and The Successor Guarantor will succeed to, and be substituted for, and may exercise every right and power of, ASG under this Agreement and such Guarantor's Note Guarantee, and thereafter the predecessor Guarantor shall be relieved of all obligations and covenants under this Indenture. Clauses (iii) and (v) of this Section 8.14(b) shall not apply to any transaction in which ASG merges with or transfers all or part of its properties and assets to an Affiliate incorporated for the purpose of reincorporating or reorganizing ASG in another state of the Notes on United States or changing its legal structure so long as the same terms as Holdingsamount of Indebtedness of ASG is not increased thereby.
Appears in 1 contract
Samples: Note Purchase Agreement (American Seafoods International LLC)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuer shall not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) either: (x) the Company Issuer is the surviving Person corporation; or (y) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person an entity organized or existing under the laws of the United Statesjurisdiction of organization of the Issuer or the laws of the U.S., any state thereof, thereof or the District of Columbia, Columbia (the Issuer or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in Section 4.09(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Successor Company and the Restricted Subsidiaries would be greater than the Fixed Charge Coverage Ratio for the Company Issuer and the Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b5.01(c)(1)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for the Company Issuer, as the case may be, under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor, as applicable. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.:
Appears in 1 contract
Samples: Indenture (Petco Holdings Inc)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may will not consolidate with or merge with or into or wind up into (whether or not the Company is the surviving Personcorporation), or sell, assign, convey, transfer, lease, convey lease or otherwise dispose of all or substantially all of the assets of the Company and its consolidated properties or assets Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company is resulting, surviving or transferee Person (the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the “Successor Company”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person corporation or limited liability company organized or and existing under the laws of the United StatesStates of America, any state thereof, or territory thereof or the District of Columbia, or any territory thereof (and if such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person entity is not a corporation, a co-obligor of the Notes is a corporationcorporation organized or existing under such laws;
(2) the Successor Company, Company (if other than the Company, ) expressly assumes all of the obligations of the Company under the Notes and the Security Documents this Indenture pursuant to a supplemental indentures or other documents or instrumentsindenture reasonably satisfactory to the Trustee;
(3) immediately after giving pro forma effect to such transaction, no Default existsor Event of Default shall have occurred and be continuing;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted able to incur Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, Section 4.09(a); or
(B) the Fixed Charge Consolidated Coverage Ratio for of the Successor Company and its Restricted Subsidiaries would be greater than the Fixed Charge Coverage Ratio such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(5) unless the Company is the Successor Company, each Guarantor, Guarantor (unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, ) shall have by supplemental indenture confirmed that its Note Guarantee shall apply to such PersonSuccessor Company’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Company shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation winding up or transfer disposition, and such supplemental indenturesindenture, if any, comply with this Indenture.
(b) The Subject to certain limitations, the Successor Company will succeed to, and be substituted for for, the Company under this Indenture Indenture, the Notes and the NotesNote Guarantees. Notwithstanding the foregoing,clauses (4) or (6) of Section 5.01(a):
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with, merge with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,Company;
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating or forming the Company in another state or territory of the United States, States of America or the District of Columbia or any territory thereof Columbia, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(23) Holdings any Non-Guarantor Subsidiary may consolidate or amalgamate with or merge into the Company; provided that if or transfer all or part of its properties and assets to the Company has or a new direct holding company parent following Guarantor.
(c) The Company will not permit any Guarantor to consolidate with or merge with or into or wind up into (whether or not such consolidationGuarantor is the surviving corporation), amalgamation or consolidation that guarantees sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person (other than to the Senior Credit FacilitiesCompany or another Guarantor) unless:
(1) (A) if such entity remains a Guarantor, such parent company willthe resulting, within 30 days of such guarantee, become surviving or transferee Person (the “Successor Guarantor”) is a guarantor Person (other than an individual) organized and existing under the laws of the Notes on United States of America, any state or territory thereof or the same terms as Holdings.District of Columbia;
Appears in 1 contract
Samples: Senior Notes Indenture (Wolverine World Wide Inc /De/)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United StatesStates of America, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3iii) immediately after such transaction, no Default exists;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-four- quarter period,:
(A) the Successor Company or the Company Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, ; or
(B) the Fixed Charge Coverage Ratio for the Company Issuer (or the Successor Company, as applicable) and its Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5v) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes;
(vi) the Co-Issuer, unless it is the party to the transactions described above, shall have by supplemental indenture cofirmed that it continues to be a co-obligor of the Notes; and
(6vii) the Issuer or, if applicable, the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for for, the Company Issuer under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding , as applicable, and the foregoing,Issuer will automatically be released and discharged from its obligations under this Indenture, the Guarantees and the Notes.
(1c) any Restricted Subsidiary that is not a Subsidiary Guarantor Notwithstanding clauses (iii) and (iv) of Section 5.01(a) hereof:
(i) the Issuer may consolidate or amalgamate with or merge with or into or transfer all or part of its properties and assets to a Guarantor;
(ii) any Restricted Subsidiary may consolidate or amalgamate with or merge with or into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company Issuer or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3iii) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Issuer in the United StatesStates of America, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2d) Holdings The Co-Issuer may not, directly or indirectly, consolidate or amalgamate merge with or merge into (whether or not the Company; provided that if Co-Issuer is the Company has surviving corporation), or transfer, lease or convey all or substantially all of the Co-Issuer’s assets to any Person, unless:
(i) (A) concurrently therewith, a new direct holding company parent following such consolidationcorporate Wholly Owned Restricted Subsidiary of the Issuer organized and validly existing under the laws of the United States, amalgamation any state thereof, the District of Columbia or consolidation that guarantees any territory thereof (which may be the Senior Credit Facilities, such parent company will, within 30 days continuing Person as a result of such guarantee, become a guarantor transaction) expressly assumes all the obligations of the Co-Issuer under the Notes on the same terms as Holdings.pursuant to supplemental indentures or other documents or instruments; or
Appears in 1 contract
Samples: Indenture (Alight Group, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may not Neither the Issuer nor the Parent Guarantor, as applicable, shall consolidate or merge with or into or wind up into (whether transfer or not the Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of lease all or substantially all of its consolidated properties assets to (whether or assets taken not the Issuer or the Parent Guarantor, as a wholeapplicable, in one or more related transactionsis the surviving corporation), to any Person unless:
(1) either: (x) the Company Issuer or the Parent Guarantor, as applicable, is the surviving Person corporation; or (y)
(i) in the case of the Issuer, the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, sale or lease, conveyance or other disposition will have been made, made is a Person corporation organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor CompanyEntity”); provided that in the case where the surviving Person is not a corporation) expressly assumes, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee, all obligations of the Issuer under the Notes and this Third Supplemental Indenture as if such Successor Entity were a party to this Third Supplemental Indenture; and (ii) in the case of the Parent Guarantor, the Successor Entity assumes the Parent Guarantor’s obligations under this Third Supplemental Indenture and the Guarantee, as if such Successor Entity were an original party to this Third Supplemental Indenture and such Guarantee;
(2) after giving effect to 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;
(3) immediately after if, as a result of any such transactionconsolidation or merger or such conveyance, no Default exists;transfer or lease, properties or assets of the Issuer or the Parent Guarantor, as applicable, would become subject to a mortgage, pledge, lien, security interest or other encumbrance that would not be permitted by this Third Supplemental Indenture, the Issuer or the Parent Guarantor, as applicable, or such Successor Entity or Person, as the case may be, shall take such steps as shall be necessary effectively to secure all the Notes or the Guarantee, as applicable, equally and ratably with (or prior to) all indebtedness secured thereby; and,
(4) immediately after giving pro forma effect to such transaction and any related financing transactionsthe Issuer or the Parent Guarantor, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Testapplicable, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indenturesindenture, if any, comply with this Third Supplemental Indenture and, if a supplemental indenture is required in connection with such transaction, such supplement shall comply with the applicable provisions of this Third Supplemental Indenture.
(b) The Successor Company will Entity shall succeed to, and be substituted for the Company Issuer or the Parent Guarantor, as applicable, as the case may be, under this Third Supplemental Indenture and the NotesNotes or the Guarantee, each as applicable. Notwithstanding the foregoingclause (3) of Section 5.01(a) hereof,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,Issuer, and
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Issuer may merge with an Affiliate of the Company Issuer, as the case may be, solely for the purpose of reincorporating the Company Issuer in a State of the United StatesStates or any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
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Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Borrower shall not consolidate or merge with or into or wind up into (whether or not the Company Borrower is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a whole, in one or more related transactions, to any Person unless:
(1a) the Company Borrower is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyBorrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Borrower or such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person ) and, if such entity is not a corporation, a co-obligor of the Notes Obligations is a corporationcorporation organized or existing under such laws;
(2b) the Successor Company, Company (if other than the Company, Borrower) expressly assumes all the obligations of the such Company under the Notes this Agreement and the Security other Loan Documents pursuant to supplemental indentures or other documents or instrumentswhich it is a party;
(3c) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction, ) no Default existsor Event of Default shall have occurred and be continuing;
(4d) immediately after giving pro forma effect to such transaction and any related financing transactionstransaction, as if such transactions transaction had occurred at the beginning of the applicable four-quarter period,, either:
(Ai) the Successor Company or the Company would be permitted to incur Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, Ratio test set forth in Section 7.2(a); or
(Bii) the Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would not be greater less than the Fixed Charge Coverage Ratio such ratio for the Company Borrower and its Restricted Subsidiaries immediately prior to such transaction;
(5e) if the Successor Company is an entity other than the Borrower, each Guarantor, Guarantor (unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture a Guarantor Joinder Agreement confirmed that its Guarantee shall apply to such Personthe Successor Company’s obligations under this Indenture, the Notes Agreement and the Security other Loan Documents; and
(6f) the Company Borrower shall have delivered to the Trustee Administrative Agent an Officer’s Certificate and an Opinion opinion of Counsel, each counsel (which may be subject to customary assumptions and exclusions) stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply complies with this Indenture.
(b) Agreement and the other Loan Documents. The Successor Company (if other than the Borrower) will succeed to, and be substituted for for, the Company Borrower under this Indenture Agreement and in such event the Borrower will automatically be released and discharged from its obligations under this Agreement and the Notesother Loan Documents. Notwithstanding clauses (c) and (d) of this Section 7.8, (A) the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor Borrower may consolidate or amalgamate with or with, merge into or transfer sell, assign, transfer, lease, convey or otherwise dispose (including in connection with a liquidation) of all or part of its properties and assets to the Company or any Restricted Subsidiary,
Subsidiary and (2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3B) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Borrower may merge or consolidate with an Affiliate of the Company incorporated or organized solely for the purpose of reincorporating or reorganizing the Company Borrower in another state of the United States, the District of Columbia or any territory thereof of the United States and (C) the Transactions may occur so long as the amount of Indebtedness of the Company Borrower and its Restricted Subsidiaries is not increased thereby. No Guarantor will, and the Borrower will not permit any Guarantor to, consolidate or merge with or into or wind up into (whether or not such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose (including in connection with a liquidation) of all or substantially all of its properties or assets in one or more related transactions to, any Person (herein called the “Successor Guarantor”) (other than the Transactions) unless (i) the surviving company (or company to which such assets are transferred) in such liquidation, merger, sale, transfer or other disposition is the Borrower or a Guarantor; or (ii):
(1) such sale or disposition or consolidation or merger is not in violation of Section 7.5;
(2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Guarantor or any of its Subsidiaries as a result of such transaction as having been Incurred by the Successor Guarantor or such Subsidiary at the time of such transaction) no Default or Event of Default shall have occurred and be continuing;
(3) the Successor Guarantor (if other than such Guarantor) shall have delivered or caused to be delivered to the Administrative Agent an Officer’s Certificate stating and an opinion of counsel (which may be subject to customary assumptions and exclusions) that such consolidation, merger or transfer complies with this Agreement; and
(24) Holdings the Successor Guarantor expressly assumes all the obligations of such Guarantor under this Agreement and the other Loan Documents, pursuant to a Guarantor Joinder Agreement. The Successor Guarantor will succeed to, and be substituted for, such Guarantor under this Agreement and such Guarantor’s Guarantee, and such Guarantor will automatically be released and discharged from its obligations under this Agreement and such Guarantor’s Guarantee. Notwithstanding the foregoing, (x) a Guarantor may merge or consolidate with an Affiliate incorporated or amalgamate organized solely for the purpose of reincorporating or reorganizing such Guarantor in another state of the United States, the District of Columbia or any territory of the United States, so long as the amount of Indebtedness of the Guarantor is not increased thereby, (y) a Guarantor may merge or consolidate with or merge transfer all or part of its properties or assets to another Guarantor or the Borrower and (z) a Guarantor may convert into a corporation, partnership, limited partnership, limited liability corporation or trust organized or existing under the Company; provided that if laws of the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days jurisdiction of organization of such guarantee, become a guarantor Guarantor or any of the Notes on the same terms as Holdingsjurisdictions set forth in clause (x) of this sentence.
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Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuer shall not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, Columbia or any territory thereof (the Issuer or such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person Successor Company is not a corporationcorporation or trust, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under this Indenture and the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee and assumes by written agreement all of the obligations of the Issuer under the Registration Rights Agreement (if the Issuer’s registration obligations thereunder have not yet been completed);
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
, (Aa) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
Leverage Ratio test set forth in Section 3.2(a) or (Bb) the Fixed Charge Coverage Leverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater less than the Fixed Charge Coverage Leverage Ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1Section 10.2(b) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security DocumentsRegistration Rights Agreement (if such Guarantor’s registration obligations thereunder have not yet been completed); and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for for, the Company Issuer under this Indenture Indenture, the Notes and the Notes. Registration Rights Agreement (if the Issuer’s registration obligations thereunder have not yet been completed).
(c) Notwithstanding the foregoingSections 4.1(a)(3) and (a)(4),
(1) any Restricted Non-Guarantor Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company Issuer or any another Restricted Subsidiary,
(2) the Issuer or any Subsidiary Guarantor may consolidate or amalgamate with or with, merge into or transfer all or part of its properties and assets to the Company Issuer or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); , as applicable, and
(3) the Company Issuer may transfer all consolidate or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Issuer in any state of the United States, the District of Columbia or any territory thereof so long of the United States. For purposes of this Section 4.1, the sale, assignment, transfer, lease, conveyance 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 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.
(d) The predecessor company shall be released from its obligations under the Notes and this Indenture or its Guarantee, as the amount of Indebtedness of case may be, and the Successor Company shall succeed to, and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings be substituted for, and may consolidate or amalgamate with or merge into exercise every right and power of, the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of Issuer under the Notes and this Indenture or the Guarantor under its Guarantee, respectively, but, in the case of a lease of all or substantially all its assets, the predecessor shall not be released from the obligation to pay the principal of and interest on the same terms Notes or its obligations under the Guarantee, as Holdingsthe case may be.
Appears in 1 contract
Samples: Indenture (Crown Media Holdings Inc)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United StatesStates of America, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3iii) immediately after such transaction, no Default exists;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,:
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, ; or
(B) the Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5v) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1i)(B) of Section 5.01(b5.01(e) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this IndentureIndenture and the Notes;
(vi) if the Successor Company is not a corporation, the Notes and Co-Issuer, unless it is the Security Documentsparty to the transactions described above, shall have by supplemental indenture confirmed that it continues to be a co-obligor of the Notes; and
(6vii) the Issuer or, if applicable, the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for for, the Company Issuer under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding , as applicable, and the foregoing,Issuer shall automatically be released and discharged from its obligations under this Indenture, the Guarantees and the Notes.
(1c) Notwithstanding clauses (iii) and (iv) of Section 5.01(a) hereof:
(i) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge with or into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company Issuer or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3ii) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Issuer in the United StatesStates of America, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2d) Holdings The Co-Issuer may not, directly or indirectly, consolidate or amalgamate merge with or merge into or wind up into (whether or not the Company; provided Co-Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Co-Issuer’s properties or assets, in one or more related transactions, to any Person, unless:
(i) (A) concurrently therewith, a corporate Wholly-Owned Subsidiary that if is a Restricted Subsidiary of the Company has Issuer organized and validly existing under the laws of the United States of America, any state thereof, the District of Columbia or any territory thereof (which may be the continuing Person as a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days result of such guarantee, become a guarantor transaction) expressly assumes all the obligations of the Co-Issuer under the Notes on the same terms as Holdings.pursuant to supplemental indentures or other documents or instruments; or
Appears in 1 contract
Samples: Indenture (Summit Materials, LLC)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United StatesStates of America, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3iii) immediately after such transaction, no Default exists;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,:
(A) the Successor Company or the Company Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, ; or
(B) the Fixed Charge Coverage Ratio for Parent (or the Company Successor Company, as applicable) and its Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Parent and its Restricted Subsidiaries immediately prior to such transaction;
(5v) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1i)(B) of Section 5.01(b5.01(e) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6vi) the Issuer or, if applicable, the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for for, the Company Issuer under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding , as applicable, and the foregoing,Issuer will automatically be released and discharged from its obligations under this Indenture, the Guarantees and the Notes.
(1c) Notwithstanding clauses (iii) and (iv) of Section 5.01(a) hereof:
(i) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge with or into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company Issuer or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3ii) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Issuer in the United StatesStates of America, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2d) Holdings may Parent shall not consolidate or amalgamate merge with or merge into or wind up into (whether or not Parent is the Company; provided that surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(i) (A) Parent is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than Parent) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor laws of the Notes on jurisdiction of organization of Parent, as applicable, or the same terms laws of the United States of America, any state thereof, the District of Columbia, or any territory thereof (such surviving Person, as Holdings.the case may be, being herein called the “Successor Parent”);
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuers will not consolidate with or merge with or into or wind up into (whether or not the Company an Issuer is the surviving Personentity), or sell, assign, convey, transfer, lease, convey lease or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeand assets, in one or more related transactions, to any Person unless:
(1) Either: (a) the Company is will be the surviving or continuing Person; or (b) the resulting, surviving or transferee Person or (the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the “Successor Company”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person corporation, limited liability company, partnership or similar entity organized or and existing under the laws of the United Statesan Approved Jurisdiction, any state thereof, the District of Columbia, or any territory thereof (and if such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person entity is not a corporation, limited company or similar corporate entity, a co-obligor of the Notes is a corporation, limited company or similar corporate entity, organized or existing under such laws;
(2) the Successor Company, Company (if other than the Company, an Issuer) expressly assumes all of the obligations of the Company applicable Issuer under the Notes and the Security Documents this Indenture pursuant to a supplemental indentures or other documents or instrumentsindenture;
(3) immediately after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Subsidiary at the time of such transaction), no Default existsor Event of Default shall have occurred and be continuing;
(4) immediately after giving pro forma effect to such transaction transaction, and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
, either (Aa) the Successor Company or the Company would be permitted have been able to incur at least Incur $1.00 of additional Indebtedness pursuant to Section 4.08(a) or (b) the Fixed Charge Coverage Test, or
coverage ratio set forth in clause (B) the Fixed Charge Coverage Ratio for the Company of such paragraph would not be greater lower than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantorconsolidation, unless it merger or wind up and the Company is a Subsidiary Guarantor that is in compliance with the other party to the transactions described above, ratio test set forth in which case clause (1C) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documentsparagraph; and
(65) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation winding up or transfer disposition, and such supplemental indenturesindenture, if any, comply with this Indenture.
(b) The Subject to certain limitations described in this Indenture, the Successor Company (if other than an Issuer) will succeed to, and be substituted for for, the Company applicable Issuer under this Indenture and the Notes and in such event the Issuers will automatically be released and discharged from their obligations under this Indenture and the Notes. Notwithstanding the foregoing,Section 5.01(a):
(1) any Restricted Subsidiary may consolidate with, merge with or into or transfer all or part of its properties and assets to an Issuer so long as no Capital Stock of the Subsidiary is distributed to any Person other than the Issuers; provided that, in the case of a Subsidiary that is merges into an Issuer, the Company will not a be required to comply with Section 5.01(a)(5);
(2) either Issuer may merge with an Affiliate of the Company solely for the purpose of reincorporating or reorganizing such Issuer in another Approved Jurisdiction; and
(3) any Non-Guarantor Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to either Issuer or a Guarantor.
(c) The Company will not permit any Guarantor, if any, to consolidate with or merge with or into or wind up into (whether or not such Guarantor is the surviving corporation), or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person (other than in a transaction described in Section 10.06(a)(1)(A) or to the Company or any Restricted Subsidiary,another Guarantor) unless:
(1) if such entity remains a Guarantor, the resulting, surviving or transferee Person (the “Successor Guarantor”) is a Person (other than an individual) organized and existing under the laws of an Approved Jurisdiction;
(2) if such Guarantor remains a Subsidiary of the Company, the Successor Guarantor, if other than such Guarantor, expressly assumes all of the obligations of such Guarantor under this Indenture, the Notes and its Note Guarantee pursuant to a supplemental indenture;
(3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(4) the Company will have delivered to the Trustee an Officer’s Certificate stating that such consolidation, merger, winding up or disposition and such supplemental indenture (if any) comply with this Indenture.
(d) Subject to certain limitations described in this Indenture, the Successor Guarantor will succeed to, and be substituted for, such Guarantor under this Indenture and the Note Guarantee of such Guarantor. Notwithstanding the foregoing, any Subsidiary Guarantor may consolidate or amalgamate (1) merge with or merge into or transfer all or part of its properties and assets to the Company a Guarantor or a Subsidiary Guarantor either Issuer, (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(32) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating or reorganizing the Company Guarantor in the United Statesan Approved Jurisdiction, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries such Guarantor is not increased thereby; and
, and the resulting entity remains or becomes a Guarantor and (3) convert into a corporation, limited liability company, partnership or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor, in each case of clauses (1), (2) Holdings may consolidate and (3) without regard to the requirements set forth in Section 5.01(c).
(e) For purposes of this Section 5.01, the sale, assignment, conveyance, transfer, lease or amalgamate with other disposition of all or merge into 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 on a consolidated basis, will be deemed to be the disposition of all or substantially all of the properties and assets of the Company.
(f) An Issuer and a Guarantor, as the case may be, will be released from its obligations under this Indenture and its Note Guarantee, as the case may be, and the successor Issuer and the successor Guarantor, as the case may be, will succeed to, and be substituted for, and may exercise every right and power of, the applicable Issuer or a Guarantor, as the case may be, under this Indenture, the Notes and such Note Guarantee; provided that if that, in the case of a lease of all or substantially all its assets, neither Issuer will be released from the obligation to pay the principal of and interest on the Notes and a Guarantor will not be released from its obligations under its Note Guarantee. For the avoidance of doubt, aircraft or engine leasing in the ordinary course of business of the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees any of its Subsidiaries shall not be considered the Senior Credit Facilities, such parent company will, within 30 days leasing of such guarantee, become a guarantor substantially all of the Notes on the same terms as HoldingsCompany’s or any such Subsidiary’s assets under this Article 5.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuer shall not consolidate with or merge with or into or wind up into (whether transfer or not the Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of lease all or substantially all of its consolidated properties assets to (whether or assets taken as a whole, in one or more related transactions, to not the Issuer is the surviving corporation) any Person unless:
(1) either: (x) the Company Issuer is the surviving Person corporation; or (y) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance transfer or other disposition lease will have been made, made is a Person corporation organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor CompanyEntity”); provided that in the case where the surviving Person is not a corporation) expressly assumes, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee, all obligations of the Issuer under the Notes and this Sixteenth Supplemental Indenture as if such Successor Entity were a party to this Sixteenth Supplemental Indenture;
(2) after giving effect to 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;
(3) immediately after if, as a result of any such transactionconsolidation or merger or such conveyance, no Default existstransfer or lease, properties or assets of the Issuer would become subject to a mortgage, pledge, lien, security interest or other encumbrance that would not be permitted by this Sixteenth Supplemental Indenture, the Issuer or such Successor Entity or Person, as the case may be, shall take such steps as shall be necessary effectively to secure all the Notes equally and ratably with (or prior to) all indebtedness secured thereby;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Subsidiary Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b5.01(b)(1)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Person’s obligations under this IndentureSixteenth Supplemental Indenture and the Notes;
(5) the Collateral owned by the Successor Entity will (a) continue to constitute Collateral under this Sixteenth Supplemental Indenture and the Security Documents, (b) be subject to a Lien in favor of the First Lien Collateral Agent for the benefit of the Trustee and the Holders of the Notes and (c) not be subject to any other Lien, other than Permitted Liens and other Liens permitted under Section 4.09;
(6) to the extent any assets of the Person which is merged or consolidated with or into the Successor Entity are assets of the type which would constitute Collateral under the Security Documents, the Successor Entity will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required in this Sixteenth Supplemental Indenture or any of the Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the Security Documents; and
(67) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation conveyance, transfer or transfer lease and such supplemental indenturesindenture, if any, comply with this IndentureSection 5.01 and that all conditions precedent provided for in this Sixteenth Supplemental Indenture relating to such transaction have been complied with.
(b) The Successor Company Subject to certain limitations described in this Sixteenth Supplemental Indenture governing release of a Subsidiary Guarantee upon the sale, disposition or transfer of a Subsidiary Guarantor, no Guarantor will, and the Issuer will succeed not permit any Subsidiary Guarantor to, and be substituted for consolidate or merge with or into or wind up into (whether or not the Company under this Indenture and Issuer or such Guarantor is the Notes. Notwithstanding the foregoing,surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Guarantor is the surviving corporation or the Person formed by or surviving any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate such consolidation or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
merger (2if other than such Guarantor) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) corporation, partnership, limited partnership, limited liability corporation or trust organized or existing under the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate laws of the Company solely for jurisdiction of organization of such Guarantor, as the purpose case may be, or the laws of reincorporating the Company in the United States, any state thereof, the District of Columbia Columbia, or any territory thereof so long (such Guarantor or such Person, as the amount of Indebtedness of case may be, being herein called the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.“Successor Person”);
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United StatesStates of America, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3iii) immediately after such transaction, no Default exists;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,:
(A) the Successor Company or the Company Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, ; or
(B) the Fixed Charge Coverage Ratio for the Company Issuer (or the Successor Company, as applicable) and its Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5v) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1iv)(B) of Section 5.01(b) hereof above shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this IndentureIndenture and the Notes;
(vi) the Co-Issuer, unless it is the party to the transactions described above, shall have by supplemental indenture confirmed that it continues to be a co-obligor of the Notes;
(vii) the Issuer or, if applicable, the Notes and the Security Documents; and
(6) the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture; and
(viii) to the extent any assets of the Person which is merged, consolidated or amalgamated with or into the Issuer, are assets of the type which would constitute Collateral under the Security Documents, the Issuer or the Successor Company, as applicable, will take such action, if any, as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Security Documents in the manner and to the extent required in this Indenture or the applicable Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the applicable Security Documents.
(b) The Successor Company will shall succeed to, and be substituted for for, the Company Issuer under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding , as applicable, and the foregoing,Issuer will automatically be released and discharged from its obligations under this Indenture, the Guarantees and the Notes.
(1c) any Restricted Subsidiary that is not a Subsidiary Guarantor Notwithstanding clauses (iii) and (iv) of Section 5.01(a) hereof:
(i) the Issuer may consolidate or amalgamate with or merge with or into or transfer all or part of its properties and assets to a Subsidiary Guarantor;
(ii) any Restricted Subsidiary may consolidate or amalgamate with or merge with or into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company Issuer or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3iii) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Issuer in the United StatesStates of America, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2d) Holdings The Co-Issuer may not, directly or indirectly, consolidate or amalgamate merge with or merge into (whether or not the Company; provided that if Co-Issuer is the Company has surviving corporation), or transfer, lease or convey all or substantially all of the Co-Issuer’s assets to any Person, unless:
(i) (A) concurrently therewith, a new direct holding company parent following such consolidationcorporate Wholly Owned Restricted Subsidiary of the Issuer organized and validly existing under the laws of the United States, amalgamation any state thereof, the District of Columbia or consolidation that guarantees any territory thereof (which may be the Senior Credit Facilities, such parent company will, within 30 days continuing Person as a result of such guarantee, become a guarantor transaction) expressly assumes all the obligations of the Co-Issuer under the Notes on the same terms as Holdings.pursuant to supplemental indentures or other documents or instruments; or
Appears in 1 contract
Samples: Indenture (Alight Group, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose (including, in each case, by way of division) of all or substantially all of its consolidated and its Subsidiaries’ properties or assets assets, taken as a whole, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or the Person to which whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia, or any territory thereof Columbia (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under this Indenture and the Notes and the Security Documents pursuant to supplemental indentures or other documents or instrumentsinstruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(Aa) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage TestRatio test set forth in Section 4.09(a), or
(Bb) the Fixed Charge Coverage Ratio for the Successor Company or the Issuer and its Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio such ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;; and
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of CounselCounsel (on which the Trustee may conclusively rely), each stating that such consolidation, merger, amalgamation wind up, sale, assignment, transfer, lease, conveyance or transfer other disposition and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for for, the Company Issuer under this Indenture, the Guarantees and the Notes, as applicable, and except in the case of a lease, the Issuer will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of subsection (a) of this Section 5.01(a) hereof,5.01:
(1) any Restricted Subsidiary may consolidate with, merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company Issuer or any other Restricted Subsidiary; and
(2) the Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating reorganizing the Company Issuer in a State of the United States, States or the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2c) Holdings may Subject to Section 10.06, no Guarantor will, and the Issuer will not permit any such Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not the Company; provided that Issuer or such Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose (including by way of division) of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (a) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees laws of the Senior Credit Facilities, such parent company will, within 30 days jurisdiction of organization of such guaranteeGuarantor, become a guarantor as the case may be, or the laws of the Notes on United States, any State thereof or the same terms District of Columbia (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
Appears in 1 contract
Samples: Indenture (Hill-Rom Holdings, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may consolidate with or merge into, or transfer or lease all or substantially all of its assets to another Person (whether or not the Issuer is the surviving corporation) without the consent of the Holders of the Notes under this Indenture if:
(1) the successor entity assumes the Issuer’s obligations on the Notes and under this Indenture, as if such successor were an original party to this Indenture;
(2) 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;
(3) if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer would become subject to a mortgage, pledge, lien, security interest or other encumbrance that would not be permitted by this Indenture, the Issuer or such successor corporation or Person, as the case may be, shall take such steps as shall be necessary effectively to secure all the Notes equally and ratably with (or prior to) all indebtedness secured thereby;
(4) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes;
(5) the Collateral owned by the successor entity will (a) continue to constitute Collateral under this Indenture and the Security Documents, (b) be subject to a Lien in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Notes and (c) not be subject to any other Lien, other than Permitted Liens and other Liens permitted under Section 4.08;
(6) to the extent any assets of the Person which is merged or consolidated with or into the successor entity are assets of the type which would constitute Collateral under the Security Documents, the successor entity will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required in this Indenture or any of the Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the Security Documents; and
(7) the Issuer 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 covenant and that all conditions precedent (including, without limitation, under this Indenture and the Security Documents) provided for relating to such transaction have been complied with.
(b) Subject to Section 10.06 and except at such time that the Issuer and the Subsidiaries are not subject to Section 4.07 pursuant to Section 4.15, none of the Guarantors will, and the Issuer will not permit any Guarantor to, consolidate or merge with or into or wind up into (whether or not the Company Issuer or such guarantor is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company (A) such Guarantor is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Companysuch guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership, limited partnership, limited liability corporation or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor, as the case may be, or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Guarantor or such Person, as the case may be, being herein called the “Successor CompanyGuarantor”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case such a transaction where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under this Indenture, the Notes and the Security Documents Registration Rights Agreement (if the Exchange Offer contemplated therein has not been consummated) pursuant to supplemental indentures or other documents or instruments;
(3iii) immediately after such transaction, no Default exists;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,:
(A) the Successor Company or the Company Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, ; or
(B) the Fixed Charge Coverage Ratio for the Company Issuer and its Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(5v) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1i)(B) of Section 5.01(b5.01(e) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security DocumentsRegistration Rights Agreement;
(vi) the Co-Issuer, unless it is the party to the transactions described above, shall have by supplemental indenture confirmed that it continues to be a co-obligor of the Notes; and
(6vii) the Issuer or, if applicable, the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will shall succeed to, and be substituted for for, the Company Issuer under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding , as applicable, and the foregoing,Issuer will automatically be released and discharged from its obligations under this Indenture, the Guarantees and the Notes.
(1c) Notwithstanding clauses (iii) and (iv) of Section 5.01(a) hereof:
(i) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge with or into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company Issuer or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3ii) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Issuer may merge with an Affiliate of the Company Issuer solely for the purpose of reincorporating reorganizing the Company Issuer in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2d) Holdings The Co-Issuer may not, directly or indirectly, consolidate or amalgamate merge with or merge into or windup into (whether or not the Company; provided that Co-Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Co-Issuer’s properties or assets, in one or more related transactions, to any Person, unless:
(i) (A) concurrently therewith, a corporate Wholly Owned Restricted Subsidiary of the Issuer organized and validly existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (which may be the continuing Person as a result of such transaction) expressly assumes all the obligations of the Co-Issuer under the Notes and the Registration Rights Agreement (if the Company exchange offer contemplated therein has a new direct holding company parent following such consolidation, amalgamation not been consummated) pursuant to supplemental indentures or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.other documents or instruments; or
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Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Issuer shall not consolidate or merge with or into or wind up into (whether or not the Company Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company Issuer is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, is a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the CompanyIssuer, expressly assumes all the obligations of the Company Issuer under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company Issuer would be equal to or greater than the Fixed Charge Coverage Ratio for the Company Issuer immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (12) of this Section 5.01(b5.01(a) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes Indenture and the Security DocumentsNotes; and
(6) the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer transaction and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company Issuer under this Indenture Indenture, the Guarantees and the Notes. Notwithstanding , as applicable, and in such event the foregoing,
Issuer will automatically be released from its obligations thereunder (1) other than in connection with any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate consolidation, lease or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantormerger); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company any Restricted Subsidiary may consolidate with or merge with or into or wind up into or sell, assign, lease, convey, transfer or otherwise dispose of all or part of its properties and assets to the Issuer, and
(2) the Issuer may consolidate with or merge with or into, or wind up into an Affiliate of the Company Issuer solely for the purpose of reincorporating the Company Issuer in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company Issuer and its Restricted Subsidiaries is not increased thereby; and.
(2c) Holdings may Subject to Section 10.06 hereof, no Guarantor will, and the Issuer will not permit any Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not such Guarantor is the Company; provided that surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees laws of the Senior Credit Facilities, such parent company will, within 30 days jurisdiction of organization of such guaranteeGuarantor, become a guarantor as applicable, or the laws of the Notes on United States, any state thereof, the same terms District of Columbia, or any territory thereof (such Guarantor or such Person, as Holdings.the case may be, being herein called the “Successor Person”);
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Samples: Senior Notes Indenture (Surgical Care Affiliates, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company Issuer may consolidate with or merge into, or transfer or lease all or substantially all of its assets to another Person (whether or not the Issuer is the surviving corporation) without the consent of the Holders of any series of Notes under this Indenture if:
(1) the successor entity assumes the Issuer’s obligations on the Notes and under this Indenture, as if such successor were an original party to this Indenture;
(2) 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;
(3) if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer would become subject to a mortgage, pledge, lien, security interest or other encumbrance that would not be permitted by this Indenture, the Issuer or such successor corporation or Person, as the case may be, shall take such steps as shall be necessary effectively to secure all the Notes equally and ratably with (or prior to) all indebtedness secured thereby;
(4) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes;
(5) the Collateral owned by the successor entity will (a) continue to constitute Collateral under this Indenture and the Security Documents, (b) be subject to a Lien in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Notes and (c) not be subject to any other Lien, other than Permitted Liens and other Liens permitted under Section 4.08;
(6) to the extent any assets of the Person which is merged or consolidated with or into the successor entity are assets of the type which would constitute Collateral under the Security Documents, the successor entity will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required in this Indenture or any of the Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the Security Documents; and
(7) the Issuer 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 covenant and that all conditions precedent (including, without limitation, under this Indenture and the Security Documents) provided for relating to such transaction have been complied with.
(b) Subject to Section 10.06 and except at such time that the Issuer and the Subsidiaries are not subject to Section 4.07 pursuant to Section 4.15, none of the Guarantors will, and the Issuer will not permit any Guarantor to, consolidate or merge with or into or wind up into (whether or not the Company Issuer or such guarantor is the surviving Personcorporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1) the Company (A) such Guarantor is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Companysuch guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made, made is a Person corporation, partnership, limited partnership, limited liability corporation or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor, as the case may be, or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Guarantor or such Person, as the case may be, being herein called the “Successor CompanyGuarantor”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes and the Security Documents pursuant to supplemental indentures or other documents or instruments;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company or the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
(B) the Fixed Charge Coverage Ratio for the Company would be greater than the Fixed Charge Coverage Ratio for the Company immediately prior to such transaction;
(5) each Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(6) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company will succeed to, and be substituted for the Company under this Indenture and the Notes. Notwithstanding the foregoing,
(1) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating the Company in the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby; and
(2) Holdings may consolidate or amalgamate with or merge into the Company; provided that if the Company has a new direct holding company parent following such consolidation, amalgamation or consolidation that guarantees the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of the Notes on the same terms as Holdings.
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Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Company may Borrower shall not consolidate or merge with or into or wind up into (whether or not the Company Borrower is the surviving Personentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its consolidated properties or assets taken as a wholeassets, in one or more related transactions, to any Person unless:
(1i) the Company Borrower is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the CompanyBorrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition will shall have been made, made is a Person corporation or limited liability company organized or existing under the laws of the United StatesStates of America, any state thereof, the District of Columbia, or any territory thereof (the Borrower or such Person, as the case may be, being herein called the “Successor CompanyBorrower”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(2ii) the Successor CompanyBorrower, if other than the CompanyBorrower, expressly assumes all the obligations of the Company Borrower under the Notes this Agreement and the Security other Loan Documents pursuant to supplemental indentures supplements to the Loan Documents or other documents or instrumentsinstruments in form reasonably satisfactory to the Agent;
(3iii) immediately after such transaction, no Default exists;
(4iv) immediately after giving pro forma effect to such transaction and any related financing transactionstransaction, as if such transactions transaction had occurred at the beginning of the applicable four-quarter period,
, (A) the Successor Company or the Company Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Test, or
Ratio test set forth in Section 6.01(a) or (B) the Fixed Charge Coverage Ratio for the Company Successor Borrower and the Restricted Subsidiaries on a consolidated basis for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of such transaction would be equal to or greater than the Fixed Charge Coverage Ratio such ratio for the Company Borrower and the Restricted Subsidiaries immediately prior to such transaction;
(5v) each Loan Guarantor, unless it is a Subsidiary Guarantor that is the other party to the transactions described above, above (in which case clause (1ii) of paragraph (c) of this Section 5.01(b6.03 or clause (ii) hereof of paragraph (e) of this Section 6.03, as applicable, shall apply, ) shall have by supplemental indenture supplement to the Loan Documents confirmed that its Guarantee guarantee of the Obligations shall apply to such Person’s 's obligations under this Indenture, the Notes Loan Documents and the Security DocumentsLoans; and
(6vi) the Company Borrower shall have delivered to the Trustee Agent an Officer’s Officers' Certificate and an Opinion opinion of Counselcounsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indenturessupplements to the Loan Documents, if any, comply with this IndentureAgreement and the other Loan Documents subject to customary assumptions and qualifications reasonably acceptable to the Agent.
(ba) The In the case of a transaction governed by paragraph (a) above, the Successor Company will Borrower shall succeed to, and be substituted for for, the Company Borrower under this Indenture Agreement and the Notesother Loan Documents and, except in the case of a lease transaction, the predecessor Borrower will be released from its obligations hereunder and thereunder. Notwithstanding the foregoing,
paragraph (1a) of this Section 6.03, (i) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or amalgamate with or merge into the Borrower, (ii) the Borrower or any Restricted Subsidiary may transfer all or part of its properties and assets to the Company or any Restricted Subsidiary,
(2) any Subsidiary Guarantor may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to the Company or a Subsidiary Guarantor and (or to a Restricted Subsidiary if that Restricted Subsidiary becomes a Subsidiary Guarantor); and
(3iii) the Company may transfer all or part of its property or assets to a Subsidiary Guarantor. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) the Company Borrower may merge with an Affiliate of the Company Borrower incorporated solely for the purpose of reincorporating the Company Borrower in another state of the United States, the District States of Columbia or any territory thereof America so long as the amount of Indebtedness of the Company Borrower and its the Restricted Subsidiaries is not increased thereby; and.
(2b) Holdings may Subject to the applicable provisions of the Guarantee and Collateral Agreement, no Subsidiary Guarantor shall, and the Borrower shall not permit any Subsidiary Guarantor to, consolidate or amalgamate merge with or merge into or wind up into (whether or not such Subsidiary Guarantor is the Company; provided surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless: (i) (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation or limited liability company organized or existing under the laws of the United States of America, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Person”), (B) the Successor Person, if other than such Subsidiary Guarantor, expressly assumes all the obligations of such Subsidiary Guarantor under this Agreement, the Guarantee and Collateral Agreement and the other Loan Documents, pursuant to supplements to the Loan Documents or other documents or instruments in form reasonably satisfactory to the Agent, (C) immediately after such transaction, no Event of Default exists and (D) if such Successor Person is different from the Subsidiary Guarantor, the Borrower shall have delivered to the Agent an Officers' Certificate and an opinion of counsel, each stating that if the Company has a new direct holding company parent following such consolidation, amalgamation merger or consolidation that guarantees transfer and such Joinder Agreement and supplements, if any, comply with this Agreement and the Senior Credit Facilities, such parent company will, within 30 days of such guarantee, become a guarantor of other Loan Documents subject to customary assumptions and qualifications reasonably acceptable to the Notes on the same terms as Holdings.Agent; or
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