Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will not consolidate with or merge with or into, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all its assets to, any Person, unless: (i) the resulting, surviving or transferee Person (the “Successor Issuer”) will be a Person organized and existing under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable; (ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; (iii) immediately after giving effect to such transaction, either (a) the Successor Issuer would be able to incur at least €1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a), or (b) the Pro Rata Fixed Charge Coverage Ratio would not be lower than it was immediately prior to giving effect to such transaction; and (iv) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a). (b) 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. (c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture or the Notes or, if applicable, any Intercreditor Agreement. (d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby. (e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer. (f) No Guarantor may: (i) consolidate with or merge with or into any Person; (ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or (iii) permit any Person to merge with or into such Guarantor, in each case, unless: (A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or (I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and (II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or (C) 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. (g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor. (h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
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Samples: Indenture (Allwyn Entertainment AG)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Parent Guarantor and the Issuer will may not consolidate with or merge with or into or wind up into, consummate a Division as the Dividing Person (whether or not the Parent Guarantor or the Issuer, as applicable, is the surviving Person), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(i) (A) the resultingParent Guarantor or the Issuer, as applicable, is the surviving Person or transferee (B) the Person formed by or surviving any such consolidation, amalgamation, merger or winding up or Division (if other than the Parent Guarantor or the Issuer, as applicable) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made (such Person being herein called the “Successor IssuerCompany”), (1) will be a Person organized and existing under expressly assumes, in the laws of any member state case of the European Union or the United States of AmericaParent Guarantor, any State all of the United States or obligations of the District Parent Guarantor under this Indenture and its Guarantee, or, in the case of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Issuer under the Notes this Indenture and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations in each case, pursuant to supplemental indentures or other applicable documents or instruments and (2) in the case of the Issuer, is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer under or the laws of the United States, any Intercreditor Agreement as applicablestate thereof, the District of Columbia or any territory thereof;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;described in clauses (i), (ii), (vi) or (vii) of Section 6.01(a) exists; and
(iii) immediately after giving effect to such transactionthe Parent Guarantor, either (a) the Issuer or, if applicable, the Successor Issuer would be able to incur at least €1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a), or (b) the Pro Rata Fixed Charge Coverage Ratio would not be lower than it was immediately prior to giving effect to such transaction; and
(iv) the Issuer Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect as applicable, stating that such consolidation, merger or transfer and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)Indenture.
(b) 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.
(c) The Successor Issuer will Company shall succeed to, and be substituted for, and may exercise every right and power ofthe Parent Guarantor or the Issuer, as applicable, under this Indenture, the Issuer under this Indenture (andGuarantees and the Notes, if as applicable, any Intercreditor Agreement)and the Parent Guarantor or the Issuer, but in the case of a lease of all or substantially all its assetsas applicable, the predecessor company will not automatically be released and discharged from its obligations under this Indenture or Indenture, the Notes orGuarantees and the Notes, if as applicable, any Intercreditor Agreement.
(dc) Notwithstanding Section 5.01(a)(iiclause (ii) and Section 5.01(a)(iii), of Section 5.01(a) hereof:
(i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, 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 a Guarantor;
(ii) any Restricted Subsidiary may 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 properties and assets to the Parent Guarantor, the Issuer or any a Subsidiary Guarantor; and
(iii) the Parent Guarantor and (ii) any Restricted Subsidiary or the Issuer may consolidate or otherwise combine with, 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 any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), an Affiliate of the Parent Guarantor or the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized solely for the purpose of changing reorganizing the legal domicile Parent Guarantor or the Issuer in another jurisdiction, which in the case of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or shall be the United States of AmericaStates, any State of the United States or state thereof, the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer Parent Guarantor and the its Restricted Subsidiaries is not increased thereby.
(ed) The foregoing provisions (other than Subject to Section 10.06 hereof, no Subsidiary Guarantor shall, and the requirements of Section 5.01(a)(ii)) will Parent Guarantor shall not apply to the creation of a new subsidiary as a Restricted permit any Subsidiary of the Issuer.
(f) No Guarantor may:
(i) to, consolidate with or merge with or into any Person;
or wind up into (ii) sell, convey, transfer whether or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into not such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person surviving Person), or (y) the resultingsell, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee andassign, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the saletransfer, lease, conveyance, assignment, transfer, convey or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of a 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 or merger or winding up (if other than such Subsidiary Guarantor) or to which such sale, which properties and assetsassignment, if held by transfer, lease, conveyance or other disposition will have been made (such Guarantor instead Person being herein called the “Successor Person”) expressly assumes all the obligations of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union this Indenture and such Subsidiary Guarantor’s related Guarantee pursuant to supplemental indentures or the United States of America, any State of the United States other applicable documents or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.instruments; and
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Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will may not consolidate with or merge with or into or wind up into, consummate a Division as the Dividing Person (whether or not the Issuer is the surviving Person), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of (including, in each case, by way of Division) all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(i) the resultingIssuer is the surviving Person or the Person formed by or surviving any such consolidation, surviving amalgamation, merger, winding up or transferee Person Division (if other than the “Successor Issuer”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made, is a Person organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer, as the case may be, or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province 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 Canada, the United Kingdom, Norway or Switzerland and Notes is a corporation;
(ii) the Successor Company, if other than the Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer under this Indenture and the Notes and this Indenture, and (b) pursuant to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer supplemental indentures or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer other documents or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuinginstruments;
(iii) immediately after giving effect to such transaction, either no Default exists;
(aiv) each Guarantor, unless it is the other party to the transactions described above (in which case clause (a)(ii) above 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
(v) 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, Division or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company shall succeed to, and be substituted for, the Issuer under this Indenture, the Guarantees and the Notes, as applicable, and the Issuer will automatically be released and discharged from its obligations under this Indenture, the Guarantees and the Notes.
(c) Notwithstanding clause (iii) of Section 5.01(a) hereof:
(i) any Restricted Subsidiary may consolidate or amalgamate with or merge with or into or wind up into, consummate a Division as the Dividing Person or transfer all or part of its properties and assets to the Issuer or a Subsidiary Guarantor; and
(ii) the Issuer may merge with an Affiliate of the Issuer, or consummate a Division as the Dividing Person with an Affiliate of the Issuer solely for the purpose of reorganizing or reincorporating the 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 Issuer and its Restricted Subsidiaries is not increased thereby.
(d) [Reserved].
(e) 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 or consummate a Division as the Dividing Person (whether or not such Subsidiary Guarantor 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 properties or assets, in one or more related transactions, to any Person unless:
(i) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation, merger or 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 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”);
(ii) the Successor Issuer would be able to incur at least €1.00 Person, if other than such Guarantor, expressly assumes all the obligations of additional Indebtedness such Guarantor under this Indenture and such Guarantor’s related Guarantee pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a), supplemental indentures or other documents or instruments;
(biii) the Pro Rata Fixed Charge Coverage Ratio would not be lower than it was immediately prior to giving effect to after such transaction, no Default exists; and
(iv) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger or transfer and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)Indenture.
(bf) For purposes of this Subject to Section 5.0110.06 hereof, 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, Successor Person shall be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer such Guarantor under this Indenture (and, if applicableand such Guarantor’s Guarantee. Notwithstanding the foregoing, any Intercreditor Agreement)Subsidiary Guarantor may (1) merge or consolidate with or into, but in wind up into or consummate a Division as the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture or the Notes or, if applicable, any Intercreditor Agreement.
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge into Dividing Person or transfer all or part of its properties and assets to another Subsidiary Guarantor or the Issuer, (2) merge or consummate a Division as the Dividing Person with an Affiliate of the Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized solely for the purpose of changing reorganizing the legal domicile Subsidiary Guarantor in the United States, any state thereof, the District of the IssuerColumbia or any territory thereof, reincorporating the Issuer (3) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of any member state the jurisdiction of the European Union organization of such Subsidiary Guarantor or the United States of America, any State of the United States (4) liquidate or the District of Columbia, Canada dissolve or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the change its legal form of if the Issuer so long as determines in good faith that such action is in the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary best interests of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) without regard to the other Person is requirements set forth in Section 5.01(e). Each of HWP and HLT Parent may merge with an Affiliate of the Issuer solely for the purpose of reincorporating or reorganizing HWP, HLT Parent or the Issuer, as the case may be, in the United States, any state thereof, the District of Columbia or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect territory thereof. Notwithstanding anything to the transaction, no Default has occurred and is continuing, or
(C) 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 (contrary in each case other than to the Issuer or a Restricted Subsidiary) otherwise permitted by this Indenture.
(g) For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, Issuer may contribute or other disposition transfer the Capital Stock of all any or substantially all of the properties and assets of one or more its Subsidiaries of a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such any Subsidiary Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
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Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will not consolidate with Company shall not, directly or indirectly: (1) consolidate, amalgamate or merge with or into, into another Person (whether or not the Company is the surviving Person); or (2) sell, assign, convey, transfer, lease convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its assets toRestricted Subsidiaries taken as a whole, any in one or more related transactions, to another Person, unless:
(i) either: (a) the resulting, Company is the surviving Person; or transferee (b) the Person (if other than the “Successor Issuer”Company) will be formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made (x) is a Person corporation, limited liability company, trust or limited partnership organized and or existing under the laws of any member state an Eligible Jurisdiction, and (y) assumes all the obligations of the European Union or Company under this Agreement and the United States of America, any State other Loan Documents pursuant to agreements reasonably satisfactory to the Administrative Agent; provided that in the case where the surviving Person is not a company organized under the laws of the United States States, any state thereof or the District of Columbia, Canada or any province a joint and several co-borrower of Canada, the Loans and other Obligations is a corporation organized under the laws of the United KingdomStates, Norway any state thereof or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations District of the Issuer under the Notes and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicableColumbia;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;exists; and
(iii) immediately after giving effect to such transaction, either (a) the Successor Issuer would 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 thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test Ratio test set forth in Section 4.09(a), 6.2(a) or (b) the Pro Rata Fixed Charge Coverage Ratio would not for the Company or such surviving Person determined in accordance with Section 6.2(a) shall be lower greater than it was the Fixed Charge Coverage Ratio test for the Company and its Restricted Subsidiaries immediately prior to giving effect to such transaction; and
(iv) , in each case, determined on a Pro Forma Basis. In addition, the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion Company may not, directly or indirectly, lease all or substantially all of Counselits properties or assets, each to the effect that such consolidationin one or more related transactions, merger or transfer and such supplemental indenture (if any) comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters other Person; provided that the foregoing shall not prohibit the chartering out of fact, including as to satisfaction Vessels in the ordinary course of clauses (i) through (iii) of this Section 5.01(a).
(b) business. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfersale or otherwise, in a single transaction or other disposition series of transactions) of all or substantially all of the properties and or assets of one or more Subsidiaries of the Issuer, which properties and assets, if held by the Issuer instead of such Restricted Subsidiaries, would the Equity Interests of which constitute all or substantially all of the properties and assets of the Issuer on a consolidated basisCompany, shall will be deemed to be the transfer of all or substantially all of the properties and assets of the IssuerCompany.
(b) The Company will 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 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) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture or the Notes or, if applicable, any Intercreditor Agreement.
(d) Notwithstanding This Section 5.01(a)(ii) and Section 5.01(a)(iii), (i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) 6.8 will not apply to a merger of the creation of Company, a new subsidiary as Guarantor or a Wholly Owned Restricted Subsidiary of such Person with an Affiliate solely for the Issuer.
(f) No purpose, and with the effect, of reorganizing the Company, a Guarantor may:
(i) consolidate with or merge a Wholly Owned Restricted Subsidiary, as the case may be, in an Eligible Jurisdiction. In addition, nothing in this “Merger, Consolidation or Sale of Assets” will prohibit any Restricted Subsidiary from consolidating or amalgamating with, merging with or into any Person;
(ii) sellor conveying, convey, transfer transferring or dispose of, all or substantially all its assets as an entirety or substantially as an entiretyleasing, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of its assets to the properties and assets of one Company or more Subsidiaries of a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any another Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized reconstituting itself in another jurisdiction for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased therebyreflagging a vessel.
Appears in 1 contract
Samples: Credit Agreement (Navios South American Logistics Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer Company will not not: (1) consolidate with or merge with or intointo another Person (whether or not the Company is the surviving Person), or (2) sell, assign, transfer, convey, transfer, lease or otherwise dispose of all or substantially all of the properties or assets of the Company and its assets toRestricted Subsidiaries taken as a whole, any Personin one or more related transactions, to another Person unless:
(i1) either: (a) the resultingCompany is the surviving Person; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, surviving assignment, transfer, conveyance, lease or transferee Person (the “Successor Issuer”) will be a Person other disposition has been made is an entity organized and or existing under the laws of any member state of the European Union or the United States of AmericaStates, any State state of the United States or the District of Columbia; and, Canada if such entity is not a corporation or a limited liability company, a co-obligor of the Notes is a corporation or a limited liability company organized or existing under any province of Canada, such laws;
(2) the United Kingdom, Norway Person formed by or Switzerland and the Successor Issuer surviving any such consolidation or merger (if not other than the IssuerCompany) will expressly assume (a) by or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of the Company under the Note Documents pursuant to a supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iii3) immediately after giving effect to such transaction, either no Default or Event of Default exists;
(a4) (A) the Successor Issuer would Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions, as if the same had occurred at the beginning of the applicable four-quarter period be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test Ratio test set forth in Section 4.09(a), ) or (bB) the Pro Rata have had a Fixed Charge Coverage Ratio equal to or greater than the actual Fixed Charge Coverage Ratio for the Company for such four-quarter period;
(5) to the extent any property or assets of the Person which is merged or consolidated with or into the Company or owned by or transferred to the successor issuer are property or assets of the type that would not constitute Collateral, the Company or the successor issuer, as applicable, will take such action, if any, as may be lower than it was immediately prior reasonably necessary to giving effect cause such property and assets to be subject to the Parity Liens of the applicable Security Documents in the manner and to the extent required under the Note Documents and shall take all reasonably necessary action so that such transactionLien is perfected to the extent required by the applicable Note Documents; and
(iv6) the Issuer Company shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each to the effect stating that such consolidationtransaction, merger or transfer and such supplemental indenture (indenture, if any) , comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)Indenture.
(b) For purposes of this Section 5.01, the Article 5 shall not apply to any sale, lease, conveyance, assignment, transfer, conveyance, lease or other disposition of all properties or substantially all assets between or among the Company and the Subsidiary Guarantors. Clauses (3) and (4) 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.Section 5.01(a) will not apply to:
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture or the Notes or, if applicable, any Intercreditor Agreement.
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate Company that merges or otherwise combine with, merge into consolidates with the Company for any purpose; provided that the Company is the survivor of such merger or transfer all or part of its properties and assets to the Issuer or any Guarantor and consolidation; or
(ii2) any Restricted Subsidiary may consolidate merger or otherwise combine with, merge into or transfer all or part consolidation of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine Company with or merge into an Affiliate incorporated or organized solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased therebyCompany in another jurisdiction.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither the Issuer will not nor the Co-Issuer may consolidate with or merge with or intointo or wind up into (whether or not such Person is the surviving corporation), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
(i) the resultingIssuer or the Co-Issuer, as applicable, is the surviving Person or transferee the Person formed by or surviving any such consolidation or merger (if other than the “Successor Issuer or the Co-Issuer”) or the Person to whom such sale, assignment, transfer, lease, conveyance or other disposition will be have been made is a Person corporation, partnership (including a limited partnership), trust or limited liability company organized and or existing under the laws of any member state of the European Union or the United States of AmericaStates, any State of the United States state or commonwealth thereof, the District of Columbia, Canada Columbia or any province territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided, in the case of Canadathe Issuer, that if such Person is not a corporation, a co-obligor of the Notes (which may be the Co-Issuer or another corporation) is a corporation organized or existing under such laws;
(ii) the Successor Company, if other than the Issuer or the Co-Issuer, expressly assumes all the obligations of the Issuer or the Co-Issuer, as applicable, under this Indenture, the United Kingdom, Norway or Switzerland Registration Rights Agreement and the Successor Issuer (if not the Issuer) will expressly assume (a) by Notes, as applicable pursuant to a supplemental indenture, executed and delivered to the Trustee, indenture or other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iii) immediately after such transaction, no Default exists;
(iv) immediately after giving pro forma effect to such transactiontransaction and any related financing transactions (including the use of proceeds therefrom), either as if such transactions had occurred at the beginning of the applicable four-quarter period,
(aA) the Successor Issuer Company or the Issuer, as applicable, would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test Consolidated Leverage Ratio test set forth in Section 4.09(a), or ) hereof or
(bB) the Pro Rata Fixed Charge Coverage Consolidated Leverage Ratio for the Successor Company or the Issuer, as applicable, and its Restricted Subsidiaries would not be lower less than it was or equal to such ratio for the Issuer and its Restricted Subsidiaries immediately prior to giving effect to such transaction; and
(ivv) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with is permitted by this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a).
(b) 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.
(c) Indenture. The Successor Issuer Company will succeed to, and be substituted for, and may exercise every right and power ofthe Issuer or the Co-Issuer, as applicable, under this Indenture, the Issuer under this Indenture (Registration Rights Agreement, the Guarantees and the Notes, as applicable, and, if applicable, any Intercreditor Agreement), but except in the case of a lease of all or substantially all its assetslease, the predecessor company Issuer or the Co-Issuer, as applicable, will not automatically be released and discharged from its obligations under this Indenture or and the Notes or, if applicable, any Intercreditor Agreement.Notes. Notwithstanding clauses (iii) and (iv) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of (other than the Issuer Issuers) may consolidate or otherwise combine with, 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 Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii; and
(2) and Section 5.01(a)(iii), the Issuer or the Co-Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer solely for the purpose of changing the legal domicile of the Issuer, reincorporating reorganizing the Issuer under the laws of any member state of the European Union or the United States of America, any State Co-Issuer in a state or commonwealth of the United States or States, the District of Columbia, Canada Columbia or any province territory thereof of Canada, for the United Kingdom, Norway sole purpose of forming or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is collapsing a holding company structure in a manner not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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 prohibited by this Indenture.
(gb) For purposes of this Subject to Section 5.0110.06, no Guarantor will, and the saleIssuer 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, conveyance, assignment, transfer, convey or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of a Guarantorrelated transactions, which properties and assets, if held by to any Person unless:
(i) (A) such Guarantor instead of is the surviving Person or the Person formed by or surviving any such Subsidiaries, would constitute all consolidation or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of merger (if other than such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II)or to which such sale, (a) any Restricted Subsidiary may consolidate assignment, transfer, lease, conveyance or otherwise combine with, merge into other disposition will have been made is a Person organized or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor existing under the laws of any member state the jurisdiction of organization of such Guarantor, as the European Union case may be, or the United States of America, any State laws of the United States States, any state or commonwealth thereof, the District of Columbia, Canada Columbia or any province of Canadaterritory thereof (such Guarantor or such Person, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of case may be, being herein called the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Person”);
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither Parent nor the Issuer will not may consolidate with or merge with or intointo or wind up into (whether or not Parent or the Issuer, as applicable, is the surviving Person), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(i) Parent or the resultingIssuer, as the case may be, is the surviving Person or transferee the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Parent or the “Successor Issuer”, as applicable) or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made, is a Person organized and or existing under the laws of any member state the jurisdiction of the European Union organization of Parent or the United States of AmericaIssuer, any State as the case may be, or the laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such Person, as the United Kingdomcase may be, Norway or Switzerland and being herein called the “Successor Issuer (if Company”); provided that in the case where the surviving Person is not the Issuer) will expressly assume (a) by supplemental indenturea corporation, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations a co-obligor of the Issuer under the Notes and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicableis a corporation;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer Company, if other than Parent or any Subsidiary the Issuer, as the case may be, expressly assumes all the obligations of Parent or the Successor Issuer Issuer, as a result of such transaction as having the case may be, under this Indenture, the Notes and the Registration Rights Agreement (if the Exchange Offer contemplated therein has not been incurred by the Successor Issuer consummated) pursuant to supplemental indentures or such Subsidiary at the time of such transaction), no Default other documents or Event of Default shall have occurred and be continuinginstruments;
(iii) immediately after such transaction, no Default exists;
(iv) immediately after giving pro forma effect to such transactiontransaction and any related financing transactions, either as if such transactions had occurred at the beginning of the applicable four-quarter period:
(aA) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a), or Test; or
(bB) the Pro Rata Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would not be lower equal to or greater than it was the Fixed Charge Coverage Ratio for Parent and its Restricted Subsidiaries immediately prior to giving effect such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, in which case clause (i)(B) of Section 5.01(e) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such transactionPerson’s obligations under this Indenture, the Notes and the Registration Rights Agreement; and
(ivvi) Parent or the Issuer Issuer, as the case may be, or, if applicable, the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger or transfer and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)Indenture.
(b) 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.
(c) The Successor Issuer will Company shall succeed to, and be substituted for, and Parent or the Issuer, as the case may exercise every right and power ofbe, under this Indenture, the Issuer under this Indenture (andGuarantees and the Notes, if as applicable, any Intercreditor Agreement)and Parent or the Issuer, but in as the case of a lease of all or substantially all its assetsmay be, the predecessor company will not automatically be released and discharged from its obligations under this Indenture or Indenture, the Notes or, if applicable, any Intercreditor AgreementGuarantees and the Notes.
(dc) Notwithstanding Section 5.01(a)(iiclauses (iii) and (iv) of Section 5.01(a)(iii), 5.01(a) hereof:
(i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, amalgamate with or merge with or into or transfer all or part of its properties and assets to Parent, the Issuer or any Guarantor and a Subsidiary Guarantor; and
(ii) any Restricted Subsidiary Parent or the Issuer, as the case may consolidate or otherwise combine withbe, may merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated of Parent or organized the Issuer, as the case may be, solely for the purpose of changing the legal domicile of reorganizing or reincorporating Parent or the Issuer, reincorporating as the Issuer under the laws of any member state of the European Union or case may be, in the United States of AmericaStates, any State of the United States or state thereof, the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer Parent and the its Restricted Subsidiaries is not increased thereby.
(d) [Reserved.]
(e) The foregoing provisions (other than Subject to Section 10.06 hereof, no Subsidiary Guarantor shall, and the requirements of Section 5.01(a)(ii)) will Issuer shall not apply to the creation of a new subsidiary as a Restricted permit any Subsidiary of the Issuer.
(f) No Guarantor may:
(i) to, consolidate with or merge with or into any Person;
or wind up into (ii) sell, convey, transfer whether or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into not such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person surviving Person), or (y) the resultingsell, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee andassign, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the saletransfer, lease, conveyance, assignment, transfer, convey or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of a Guarantorrelated transactions, which properties and assets, if held by to any Person unless:
(i) (A) such Guarantor instead of is the surviving Person or the Person formed by or surviving any such Subsidiariesconsolidation, would constitute all amalgamation or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of merger (if other than such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II)or to which such sale, (a) any Restricted Subsidiary may consolidate assignment, transfer, lease, conveyance or otherwise combine with, merge into other disposition will have been made is a Person organized or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor existing under the laws of any member state the jurisdiction of the European Union organization of such Guarantor, as applicable, or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such surviving Guarantor or such Person, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of case may be, being herein called the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Person”);
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Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will may not consolidate with or merge with or intointo or wind up into (whether or not the Issuer is the surviving Person), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose (including, in each case, by way of a Delaware LLC Division) of all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(i) the resultingIssuer is the surviving Person or the Person formed by or surviving any such consolidation, surviving amalgamation or transferee Person merger (if other than the “Successor Issuer”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made, is a Person organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province 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 Canada, the United Kingdom, Norway or Switzerland and Notes is a corporation;
(ii) the Successor Issuer (Company, if not other than the Issuer) will , expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer under the Notes and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Registration Rights Agreement as applicable;
(ii) immediately after giving effect and the Collateral Documents pursuant to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer supplemental indentures or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer other documents or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuinginstruments;
(iii) immediately after such transaction, no Default exists;
(iv) immediately after giving pro forma effect to such transactiontransaction and any related financing transactions, either as if such transactions had occurred at the beginning of the applicable four-quarter period,
(aA) the Issuer or the Successor Issuer Company, as applicable, would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)Test, or or
(bB) the Pro Rata Fixed Charge Coverage Ratio for the Issuer or the Successor Company, as applicable, and its Restricted Subsidiaries would not be lower equal to or greater than it was the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries immediately prior to giving effect such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, in which case Section 5.01(c)(i)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such transaction; andPerson’s obligations under this Indenture, the Notes, the Registration Rights Agreement and the Collateral Documents;
(ivvi) the Issuer or, if applicable, the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, amalgamation or transfer and such supplemental indenture (indentures, if any) , comply with this Indenture;
(vii) the Collateral owned by or transferred to the Successor Company shall:
(A) continue to constitute Collateral under this Indenture and an Opinion of Counsel the Collateral Documents with the same priorities as existed immediately prior to such transaction,
(B) be subject to the effect that Lien in favor of the Collateral Agent for the benefit of the Holders , and
(C) not be subject to any Lien other than Liens permitted by this Indenture; and
(viii) the property and assets of the Person which is merged or consolidated with or into the Person formed by or surviving any such supplemental indenture consolidation or merger (if anyother than the Issuer) or to which such sale, assignment, transfer, conveyance or other disposition has been duly authorizedmade, executed to the extent that they are property or assets of the types that would constitute Collateral under the Collateral Documents, shall be treated as After-Acquired Property and delivered the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, conveyance or other disposition has been made shall take such action as may be reasonably necessary to cause such property and is a legal, valid assets to be made subject to the Lien of the Collateral Documents in the manner and binding agreement enforceable against to the Successor Issuer; provided, that extent required in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)Indenture.
(b) For purposes of this Section 5.01The Successor Company, the sale, lease, conveyance, assignment, transfer, or if other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of than 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.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assetsIndenture, the predecessor company Guarantees and the Notes, as applicable and the Issuer will not automatically be released and discharged from its obligations under this Indenture or Indenture, the Notes or, if applicable, any Intercreditor Agreement.
Guarantees and the Notes. Notwithstanding clauses (d) Notwithstanding Section 5.01(a)(iiiii) and (iv) of Section 5.01(a)(iii), 5.01(a) hereof,
(i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, amalgamate with or merge with or into or transfer all or part of its properties and assets to the Issuer or any Guarantor and a Subsidiary Guarantor,
(ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or in the United States of AmericaStates, any State of the United States or state thereof, the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the its Restricted Subsidiaries is not increased thereby, and
(iii) the Issuer may contribute Capital Stock of any or all of its Subsidiaries to any Subsidiary Guarantor.
(ec) The foregoing provisions (other than Subject to Section 10.06 hereof, no Subsidiary Guarantor shall, and the requirements of Section 5.01(a)(ii)) will Issuer shall not apply to the creation of a new subsidiary as a Restricted permit any Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with to, consolidate, amalgamate or merge with or into any Person;
or wind up into (ii) sell, convey, transfer whether or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into not such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person surviving Person), or (y) the resultingsell, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee andassign, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the saletransfer, lease, conveyance, assignment, transfer, convey or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries 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 (including, in each case, by way of a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all Delaware LLC Division) will have been made is a Person organized or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor existing under the laws of any member state the jurisdiction of the European Union organization of such Guarantor, as applicable, or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such surviving Guarantor or such Person, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of case may be, being herein called the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Person”);
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Samples: Indenture (APX Group Holdings, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will Company may not consolidate with or merge with or intointo (whether or not the Company is the surviving corporation), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its properties or assets toin one or more related transactions, any Personto another corporation, unlessPerson or entity unless such transaction constitutes a Change of Control and:
(i) (A) the resultingCompany is the surviving corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, surviving assignment, transfer, lease, conveyance or transferee Person (the “Successor Issuer”) will be other disposition shall have been made is a Person corporation, limited liability company or limited partnership organized and or existing under the laws of any member state of the European Union or the United States of AmericaStates, any State of the United States state thereof or the District of Columbia; provided that, Canada in case of a limited liability company or a partnership, a co-obligor of the Notes is a corporation;
(ii) the entity or Person formed by or surviving any province such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of Canadathe Company under the Collateral Agreements, the United Kingdom, Norway or Switzerland Notes and the Successor Issuer (if not the Issuer) will expressly assume (a) by Indenture pursuant to a supplemental indenture, executed and delivered to the Trustee, indenture in a form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, either (a) the Successor Issuer would be able to incur at least €1.00 transaction no Default or Event of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a), or (b) the Pro Rata Fixed Charge Coverage Ratio would not be lower than it was immediately prior to giving effect to such transactionDefault exists; and
(iv) except in the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion case of Counsel, each to the effect that such a consolidation, amalgamation or merger with or transfer and such supplemental indenture (if any) comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is into or a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a).
(b) For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, 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 property and assets of the Issuer Company and any of its Subsidiaries to a Wholly Owned Subsidiary of the Company, (A) the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, will at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in SECTION 4.09(A) and (B) the Consolidated Leverage Ratio of the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), as the case may be, is at least 0.5 times lower on a consolidated basispro forma basis than the Consolidated Leverage Ratio of the Company immediately preceding the transaction.
(b) No Guarantor may consolidate or merge with or into (whether or not the Company or such Guarantor is the surviving corporation), shall be deemed to be the transfer or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the its properties and or assets of the Issuerin one or more related transactions, to another corporation, Person or entity.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture or the Notes or, if applicable, any Intercreditor Agreement.
(d) Notwithstanding This Section 5.01(a)(ii) and Section 5.01(a)(iii), (i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) 5.01 will not apply to a merger of the creation Company or a Guarantor with an Affiliate solely for the purpose, and with the effect, of reincorporating the Company or such a new subsidiary Guarantor, as a the case may be, in another jurisdiction of the United States. In addition, nothing in this SECTION 5.01 will prohibit any Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with from consolidating or merge amalgamating with, merging with or into any Person;
(ii) sellor conveying, convey, transfer transferring or dispose of, all or substantially all its assets as an entirety or substantially as an entiretyleasing, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of CanadaParent, the United Kingdom, Norway Company or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the another Restricted Subsidiaries is not increased therebySubsidiary.
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Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will shall not consolidate consolidate, merge or amalgamate with or merge with into or intowind up into (whether or not the Issuer is the surviving Person), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all its of the properties or assets toof the Issuer and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person, Person unless:
(i1) the resultingIssuer is the surviving Person or the Person formed by or surviving any such consolidation, surviving amalgamation or transferee Person merger (if other than the “Successor Issuer”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made is a Person organized and or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, the Netherlands, the United Kingdom, any member state of the European Union or the United States of America, any State of the United States or the District of ColumbiaUnion, Canada or any state, territory, province or possession thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the Successor Company is not a corporation, a co-obligor of Canadathe Notes shall be a corporation;
(2) the Successor Company, if other than the United KingdomIssuer, Norway or Switzerland expressly assumes all the obligations of the Issuer under this Indenture and the Successor Issuer (if not the Issuer) will expressly assume (a) by Notes pursuant to supplemental indenture, executed and delivered to the Trustee, indentures or other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(ii3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation related financing transactions, as if such transactions had occurred at the beginning of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;applicable four-quarter period,
(iii) immediately after giving effect to such transaction, either (aA) the Successor Company or the Issuer would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test Ratio test set forth in clause (i) of Section 4.09(a), or or
(bB) the Pro Rata Fixed Charge Coverage Ratio for the Issuer (or the Successor Company, as applicable) and the Restricted Subsidiaries on a consolidated basis would not be lower equal to or greater than it was the Fixed Charge Coverage Ratio for the Issuer and the Restricted Subsidiaries on a consolidated basis immediately prior to giving effect such transaction;
(5) each Guarantor (if any), unless it is the other party to the transactions described above, in which case clause (1)(B) of Section 5.01(c) shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such transactionPerson’s obligations under this Indenture and the Notes; and
(iv6) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, amalgamation, merger or transfer and such supplemental indenture (indentures or other documents and instruments, if any) , comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)Indenture.
(b) 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.
(c) The Successor Issuer will Company shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and the Notes, and, if applicable, any Intercreditor Agreement), but except in the case of a lease of all or substantially all its assetslease, the predecessor company will not Issuer shall automatically be released and discharged from its obligations under this Indenture or and the Notes or, if applicable, any Intercreditor Agreement.Notes. Notwithstanding clauses (3) and (4) of Section 5.01(a),
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine amalgamate with, merge into or transfer sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii; and
(2) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with consolidate, amalgamate or merge into with an Affiliate incorporated or organized of the Issuer solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under in any state in the laws United States, the District of Columbia or any territory thereof, the Netherlands, the United Kingdom, any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any state, territory, province of Canadaor possession thereof, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
(ec) The foregoing provisions (other than Subject to Section 10.06, no Guarantor shall, and the requirements of Section 5.01(a)(ii)) will Issuer shall not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No permit any such Guarantor may:
(i) consolidate with to, consolidate, amalgamate or merge with or into any Person;
or wind up into (ii) sell, convey, transfer whether or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into not such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person surviving Person), or (y) the resultingsell, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee andassign, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the saletransfer, lease, conveyance, assignment, transfer, convey or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of a Guarantorrelated transactions, which properties and assets, if held by to any Person unless:
(1) (A) such Guarantor instead of is the surviving Person or the Person formed by or surviving any such Subsidiariesconsolidation, would constitute all amalgamation or substantially all 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, formed or existing under (i) the laws of the properties and assets jurisdiction of organization of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(hii) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, the Netherlands, the United Kingdom, any member state of the European Union or the United States of AmericaUnion, any State of the United States or the District of ColumbiaCanada, Canada Puerto Rico, Cayman Islands, Austria or any state, territory, province of Canadaor possession thereof (such Guarantor or such Person, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of case may be, being herein called the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Guarantor”);
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither the Issuer will not nor the Parent Guarantor, as applicable, shall consolidate with or merge with into or into, transfer or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its assets toto (whether or not the Issuer or the Parent Guarantor, as applicable, is the surviving corporation), any Person, Person unless:
(1) either: (x) the Issuer or the Parent Guarantor, as applicable, is the surviving corporation; or (y)
(i) in the resultingcase of the Issuer, the Person formed by or surviving any such consolidation or transferee Person merger (if other than the “Successor Issuer”) or to which such transfer or lease, will be have been made is a Person corporation organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such Person, as the United Kingdomcase may be, Norway being herein called the “Successor Entity”) expressly assumes, pursuant to supplemental indentures or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Thirty-Eighth Supplemental Indenture as if such Successor Entity were a party to this Thirty-Eighth Supplemental Indenture, ; and (bii) to in the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations case of the Issuer Parent Guarantor, the Successor Entity assumes the Parent Guarantor’s obligations under any Intercreditor Agreement this Thirty-Eighth Supplemental Indenture and the Guarantee, as applicableif such Successor Entity were an original party to this Thirty-Eighth Supplemental Indenture and such Guarantee;
(ii2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default 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;
(iii3) immediately after giving effect if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer or the Parent Guarantor, as applicable, would become subject to such transactiona mortgage, either (a) the Successor Issuer would be able to incur at least €1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)pledge, lien, security interest or (b) the Pro Rata Fixed Charge Coverage Ratio other encumbrance that would not be lower than it was immediately permitted by this Thirty-Eighth 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 giving effect to such transactionto) all indebtedness secured thereby; and,
(iv4) the Issuer or the Parent Guarantor, as applicable, shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, conveyance, transfer or transfer lease and such supplemental indenture (indenture, if any) , comply with this Indenture Section 5.01 and an Opinion of Counsel that all conditions precedent provided for relating to the effect that such supplemental indenture (if any) has transaction have been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)complied with.
(b) 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.
(c) The Successor Issuer will Entity shall succeed to, and be substituted for, and may exercise every right and power of, for the Issuer or the Parent Guarantor, as applicable, as the case may be, under this Thirty-Eighth Supplemental Indenture (and, if applicable, any Intercreditor Agreement), but in and the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture Notes or the Notes orGuarantee, if each as applicable, any Intercreditor Agreement.. Notwithstanding clause (3) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate with or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Issuer, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer, as the case may be, solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any in a State of the United States or any state thereof, the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the Restricted its Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will may not consolidate with or merge with or intointo or wind up into (whether or not the Issuer is the surviving corporation), or sell, assign, transfer, lease, convey, transfer, lease consummate a Division as the Dividing Person or otherwise dispose of all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(ia) in the case of a Division where the Issuer 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 resultingDivision, as to any Division Successor that will not be a co-issuer, is permitted by Section 4.10 hereof and (b) the Issuer is the surviving Person or transferee the Person formed by or surviving any such consolidation, merger, Division or wind-up (if other than the “Successor Issuer”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made is a Person organized and 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 States of AmericaKingdom (such Person, any State of as the United States or case may be, being herein called the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland and “Successor Company”);
(2) the Successor Issuer (Company, if not other than the Issuer) will , expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer under this Indenture and the Notes and this Indenture, and (b) pursuant to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicablesupplemental indentures or other documents or instruments;
(ii3) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuingexists;
(iii4) immediately after giving pro forma effect to such transactiontransaction and any related financing or debt reduction transactions, either as if such transactions had occurred at the beginning of the applicable four-quarter period,
(aA) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)) hereof, or or
(bB) the Pro Rata Fixed Charge Coverage Ratio for the Successor Company and the Restricted Subsidiaries would not be lower equal to or greater than it was the Fixed Charge Coverage Ratio for the Issuer and the Restricted Subsidiaries immediately prior to giving effect 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 transactionPerson’s obligations under this Indenture and the Notes; and
(iv6) the Issuer Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, wind up, sale, assignment, transfer, lease, conveyance or transfer other disposition and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)Indenture.
(b) For purposes of this Section 5.01The Successor Company, 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 if not 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.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but and the Notes and in such event the case of a lease of all or substantially all its assets, the predecessor company Issuer will not automatically be released and discharged from its obligations under this Indenture or and the Notes or, if applicable, any Intercreditor Agreement.Notes. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge with or into or wind up into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Subsidiary Guarantor, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer solely for the purpose of changing the legal domicile of the Issuer, reincorporating reorganizing the Issuer under the laws of any member in another state of the European Union or the United States of AmericaStates, any State of the United States or the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the its Restricted Subsidiaries is not materially increased thereby.
(ec) The foregoing provisions (other than Subject to Section 10.06 hereof, no Subsidiary Guarantor will, and the requirements of Section 5.01(a)(ii)) Issuer will not apply to the creation of a new subsidiary as a Restricted permit any Subsidiary of the Issuer.
(f) No Guarantor may:
(i) to, consolidate with or merge with or into any or wind up into (whether or not such Subsidiary Guarantor is the surviving Person;
(ii) ), or sell, assign, transfer, lease, convey, transfer or dispose of, all or substantially all its assets consummate a Division as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any the Dividing Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of a Guarantorrelated transactions, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.any Person unless:
(h1) Notwithstanding (A) such Subsidiary Guarantor is the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor surviving Person or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II)Person formed by or surviving any such consolidation, merger, Division, or 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 Guarantor may consolidate Person organized or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor existing under the laws of any member state the jurisdiction of the European Union organization of such Subsidiary Guarantor or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canada, territory thereof (such Person being herein called the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Person”);
Appears in 1 contract
Samples: Indenture (Catalent, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither the Issuer will not nor the Company shall consolidate with or merge with or intointo or wind up into (whether or not the Issuer or the Company, as the case may be, is the surviving entity), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its assets toSubsidiaries on a consolidated basis, in one or more related transactions, to any Person, Person unless:
(i1) the resultingIssuer or the Company, as the case may be, is the surviving corporation or transferee the Person formed by or surviving any such consolidation or merger (if other than the “Successor Issuer or the Company, as the case may be) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is (a) in the case of the Issuer”) will be , a Person corporation organized and or existing under the laws of the United States of America, any state thereof, the District of Columbia, or any territory thereof or a corporation organized in any member state of the European Union or the United Kingdom and (b) in the case of the Company, a corporation organized or existing under the laws of the United States of America, any State of the United States or state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (the Issuer, the United KingdomCompany or such Person, Norway or Switzerland and as the case may be, being herein called the “Successor Company”);
(2) the Successor Company, if other than the Issuer (if not or the Company, as the case may be, expressly assumes in the case of the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under this Indenture and the Notes and this Indentureand, and (b) to in the extent any Intercreditor Agreement has been entered into with respect to case of the NotesCompany, all the obligations of the Issuer Company under any Intercreditor Agreement as applicablethis Indenture and its Guarantee, in each case, pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(ii3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation related financing transactions, as if such transactions had occurred at the beginning of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;applicable four-quarter period,
(iii) immediately after giving effect to such transaction, either (aA) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test Ratio test set forth in Section 4.09(a)) hereof, or or
(bB) the Pro Rata Fixed Charge Coverage Ratio for the Successor Company, the Company and the Restricted Subsidiaries on a consolidated basis would not be lower greater than it was such ratio for the Company and the Restricted Subsidiaries immediately prior to giving effect such transaction;
(5) in the case of the Issuer, each 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 transactionPerson’s obligations under this Indenture and the Notes; and
(iv6) the Issuer Company shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger or transfer and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion of Counsel Indenture. Notwithstanding anything to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a).
(b) For purposes of this Section 5.01contrary 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, lease, conveyance, 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 Company and its Subsidiaries on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.
(cb) The Successor Issuer will Company shall succeed to, and be substituted for, and the Issuer or the Company, as the case may exercise every right and power ofbe, under this Indenture, the Issuer under this Indenture Guarantees and the Notes, as applicable. Notwithstanding clauses (and, if applicable, any Intercreditor Agreement), but in the case 3) and (4) of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture or the Notes or, if applicable, any Intercreditor Agreement.Section 5.01(a) hereof:
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to to, the Issuer or any Guarantor and Company, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate of the Issuer incorporated or organized solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under in the laws United States of America, any state thereof, the District of Columbia, or any territory thereof, in any other member state of the European Union or the United States Kingdom and the Company may merge with an Affiliate of America, any State the Company incorporated solely for the purpose of reincorporating the Company in another state of the United States of America or the District of Columbia, Canada Columbia or any province of Canadaterritory thereof, the United Kingdomin each case, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer Company and the Restricted Subsidiaries is not increased thereby.
(ec) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply Subject to the creation certain limitations described in this Indenture governing release of a new subsidiary as Guarantee upon the sale, disposition or transfer of a Restricted Subsidiary of Guarantor, each Subsidiary Guarantor shall not, and the Issuer.
(f) No Company shall not permit any Subsidiary Guarantor may:
(i) to, consolidate with or merge with or into any Person;
or wind up into (ii) sell, convey, transfer whether or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into not such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person surviving corporation), or (y) the resultingsell, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee andassign, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the saletransfer, lease, conveyance, assignment, transfer, convey or other disposition otherwise dispose of all or substantially all of the its properties and or assets of in one or more Subsidiaries of a Guarantorrelated transactions to, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.any Person unless:
(h1) Notwithstanding (A) such Subsidiary Guarantor is the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor surviving entity or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II)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 Guarantor may consolidate corporation, partnership, limited partnership, limited liability company or otherwise combine with trust organized or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor existing under the laws of any member state of the European Union or the United States of America, any State of the United States or state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such Subsidiary Guarantor or such Person, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of case may be, being herein called the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Person”);
Appears in 1 contract
Samples: Indenture (Aramark)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will Borrower shall not consolidate consolidate, merge or amalgamate with or merge with into or intowind up into (whether or not the Borrower is the surviving Person), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(i) the resultingBorrower is the surviving Person or the Person formed by or surviving any such consolidation, surviving amalgamation or transferee Person (the “Successor Issuer”) merger or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made is a Person organized and or existing under the laws of any member state of the European Union or the United States of AmericaStates, any State of the United States or state thereof, the District of Columbia, Canada Columbia or any province territory thereof (such Person, as the case may be, being herein called the “Successor Company”);
(ii) the Successor Company expressly assumes all the obligations of Canada, the United Kingdom, Norway or Switzerland Borrower under this Agreement and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered other Loan Documents pursuant to the Trustee, joinders or other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuingAdministrative Agent;
(iii) immediately after such transaction, no Default exists;
(iv) immediately after giving pro forma effect to such transactiontransaction and any related financing transactions, either as if such transactions had occurred at the beginning of the applicable four-quarter period, (aA) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test Ratio test set forth in the Section 4.09(a6.01(a), or (bB) the Pro Rata Fixed Charge Coverage Ratio for the Borrower (or the Successor Company, as applicable) and the Restricted Subsidiaries on a consolidated basis would not be lower greater than it was the Fixed Charge Coverage Ratio for the Borrower and the Restricted Subsidiaries on a consolidated basis immediately prior to giving effect to such transaction; and;
(ivv) [Intentionally Omitted];
(vi) the Issuer Borrower shall have delivered to the Trustee Administrative Agent an Officer’s Certificate and an Opinion of CounselCertificate, each to the effect stating that such consolidation, amalgamation, merger or transfer and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion of Counsel Agreement;
(vii) to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to extent any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a).
(b) 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 Person that is merged, amalgamated or consolidated basis, shall be deemed to be with or into the transfer of all or substantially all of the properties and Successor Company are assets of the Issuer.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power oftype that would constitute Collateral under the Security Documents, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assets, the predecessor company Successor Company will not take such action as may be released from its obligations under this Indenture or the Notes or, if applicable, any Intercreditor Agreement.
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge into or transfer all or part of its properties reasonably necessary to cause such property and assets to be made subject to the Issuer Lien of the Security Documents in the manner and to the extent required by this Agreement or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Issuer, reincorporating Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the Issuer under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer extent required by this Agreement and the Restricted Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor AgreementSecurity Documents; and
(IIviii) immediately after giving effect the Collateral owned by or transferred to the transactionSuccessor Company shall: (A) continue to constitute Collateral under the Loan Documents, no Default has occurred and is continuing, or
(CB) be subject to the transaction constitutes a sale or other disposition (including by way of consolidation or merger) Lien in favor of the Guarantor or Collateral Agent for the sale or disposition of all or substantially all the assets benefit of the Guarantor (in each case other than to the Issuer or a Restricted Subsidiary) otherwise permitted by this Indenture.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.Bank Secured Parties and
Appears in 1 contract
Samples: Revolving Credit Agreement (Community Choice Financial Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will not Neither TCEH nor the Parent Guarantor may consolidate with or merge with or intointo or wind up into (whether or not TCEH or the Parent Guarantor, as the case may be, is the surviving corporation), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(i1) TCEH or the resultingParent Guarantor, as the case may be, is the surviving corporation or transferee the Person formed by or surviving any such consolidation, wind-up or merger (if other than TCEH or the “Successor Issuer”Parent Guarantor, as the case may be) or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made is a Person corporation, partnership, limited liability corporation or trust organized and or existing under the laws of any member state the jurisdiction of the European Union organization of TCEH or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province territory thereof (such Person, as the case may be, being herein called the “Successor Company”);
(2) the Successor Company, if other than TCEH or the Parent Guarantor, as the case may be, expressly assumes all the obligations of CanadaTCEH or the Parent Guarantor, as the United Kingdomcase may be, Norway or Switzerland under (i) the Notes, this Indenture and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indentureSecurity Documents, executed and delivered to the Trusteeextent TCEH or the Parent Guarantor, as applicable, is a party thereto, pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Indenture, Trustee and (bii) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicableRegistration Rights Agreement;
(ii3) immediately after such transaction, no Default exists;
(4) in the case of TCEH, immediately after giving pro forma effect to such transaction (and treating including, without limitation, any transaction the proceeds of which are applied to reduce the Indebtedness that becomes an obligation of the Successor Issuer Company or TCEH, as the case may be) and any Subsidiary related financing transactions, as if such transactions had occurred at the beginning of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;applicable four-quarter period,
(iii) immediately after giving effect to such transaction, either (a) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test Ratio test set forth in Section 4.09(a)) hereof, or or
(b) the Pro Rata such Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would not be lower greater than it was such ratio for TCEH and its Restricted Subsidiaries immediately prior to giving effect such transaction;
(5) each 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 a supplemental indenture confirmed that its Guarantee and any Security Documents to which it is a party shall apply to such transactionPerson’s obligations under this Indenture, the Notes and the Registration Rights Agreement; and
(iv6) the Issuer TCEH shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, wind-up, merger or transfer and such supplemental indenture (indenture, if any) , comply with this Indenture and an Opinion of Counsel to the effect that and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against shall comply with the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) applicable provisions of this Section 5.01(a)Indenture.
(b) 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.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture or the Notes or, if applicable, any Intercreditor Agreement.
(d) Notwithstanding Section 5.01(a)(iiSections 5.01(a)(3) and Section 5.01(a)(iii), (i4) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.hereof,
Appears in 1 contract
Samples: Indenture (Energy Future Intermediate Holding CO LLC)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will may not consolidate with or merge with or intointo or wind up into (whether or not the Issuer is the surviving corporation), or sell, assign, transfer, lease, convey, transfer, lease consummate a Division as the Dividing Person or otherwise dispose of all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(ia) in the case of a Division where the Issuer is the Dividing Person, either (x) all Division Successors shall become co-Issuer of the Notes (this clause (x), a “Permitted Co-Issuer Division”) or (y) the resultingDivision, as to any Division Successor that will not be a co-issuer, is permitted by Section 4.10 hereof and (b) the Issuer is the surviving Person or transferee the Person formed by or surviving any such consolidation, merger, Division or wind-up (if other than the “Successor Issuer”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made is a Person organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof(such Person, as the United Kingdomcase may be, Norway or Switzerland and being herein called the “Successor Company”);
(2) the Successor Company, if other than the Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer under this Indenture and the Notes and this Indenture, and (b) pursuant to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicablesupplemental indentures or other documents or instruments;
(ii3) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuingexists;
(iii4) only in the case of the Issuer, immediately after giving pro forma effect to such transactiontransaction and any related financing or debt reduction transactions, either as if such transactions had occurred at the beginning of the applicable four-quarter period,
(aA) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)) hereof, or or
(bB) the Pro Rata Fixed Charge Coverage Ratio for the Successor Company and the Restricted Subsidiaries would not be lower equal to or greater than it was the Fixed Charge Coverage Ratio for the Issuer and the Restricted Subsidiaries immediately prior to giving effect 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 transactionPerson’s obligations under this Indenture and the Notes; and
(iv6) the Issuer Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, wind up, sale, assignment, transfer, lease, conveyance or transfer other disposition and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion Indenture; provided that the Trustee shall be under no obligation to inform Holders of Counsel to the effect that occurrence of any such supplemental indenture (if any) has been duly authorizedconsolidation, executed and delivered and is a legalmerger, valid and binding agreement enforceable against the Successor Issuer; providedwind-up, that in giving an Opinion of Counselsale, counsel may rely on an Officer’s Certificate as to any matters of factassignment, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)transfer, lease, conveyance or other disposition.
(b) 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 assetsThe Successor Company, if held by not 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.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but and the Notes and in such event the case of a lease of all or substantially all its assets, the predecessor company Issuer will not automatically be released and discharged from its obligations under this Indenture or and the Notes or, if applicable, any Intercreditor Agreement.Notes. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge with or into or wind up into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Subsidiary Guarantor, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized thereof solely for the purpose of changing the legal domicile of the Issuer, reincorporating reorganizing the Issuer under the laws of any member in another state of the European Union or the United States of AmericaStates, any State of the United States or the District of Columbia, Canada Columbia or any province of Canadaterritory thereof, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the its Restricted Subsidiaries is not materially increased thereby.
(ec) The foregoing provisions (other than Subject to Section 10.06 hereof, on and following the requirements of Section 5.01(a)(ii)) Issue Date, no Subsidiary Guarantor will, and the Issuer will not apply to the creation of a new subsidiary as a Restricted permit any Subsidiary of the Issuer.
(f) No Guarantor may:
(i) to, consolidate with or merge with or into any or wind up into (whether or not such Subsidiary Guarantor is the surviving Person;
(ii) ), or sell, assign, transfer, lease, convey, transfer or dispose of, all or substantially all its assets consummate a Division as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any the Dividing Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of a Guarantorrelated transactions, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.any Person unless:
(h1) Notwithstanding (A) such Subsidiary Guarantor is the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor surviving Person or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II)Person formed by or surviving any such consolidation, merger, Division, or 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 Guarantor may consolidate Person organized or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor existing under the laws of any member state the jurisdiction of the European Union organization of such Subsidiary Guarantor or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canada, territory thereof(such Person being herein called the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Person”);
Appears in 1 contract
Samples: Indenture (Healthcare Royalty, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither the Issuer will not nor the Parent Guarantor, as applicable, shall consolidate with or merge with into or into, transfer or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its assets toto (whether or not the Issuer or the Parent Guarantor, as applicable, is the surviving corporation), any Person, Person unless:
(1) either: (x) the Issuer or the Parent Guarantor, as applicable, is the surviving corporation; or (y)
(i) in the resultingcase of the Issuer, the Person formed by or surviving any such consolidation or transferee Person merger (if other than the “Successor Issuer”) or to which such transfer or lease, will be have been made is a Person corporation organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such Person, as the United Kingdomcase may be, Norway being herein called the “Successor Entity”) expressly assumes, pursuant to supplemental indentures or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Thirty-Fifth Supplemental Indenture as if such Successor Entity were a party to this Thirty-Fifth Supplemental Indenture, ; and (bii) to in the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations case of the Issuer Parent Guarantor, the Successor Entity assumes the Parent Guarantor’s obligations under any Intercreditor Agreement this Thirty-Fifth Supplemental Indenture and the Guarantee, as applicableif such Successor Entity were an original party to this Thirty-Fifth Supplemental Indenture and such Guarantee;
(ii2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default 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;
(iii3) immediately after giving effect if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer or the Parent Guarantor, as applicable, would become subject to such transactiona mortgage, either (a) the Successor Issuer would be able to incur at least €1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)pledge, lien, security interest or (b) the Pro Rata Fixed Charge Coverage Ratio other encumbrance that would not be lower than it was immediately permitted by this Thirty-Fifth 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 giving effect to such transactionto) all indebtedness secured thereby; and,
(iv4) the Issuer or the Parent Guarantor, as applicable, shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, conveyance, transfer or transfer lease and such supplemental indenture (indenture, if any) , comply with this Indenture Section 5.01 and an Opinion of Counsel that all conditions precedent provided for relating to the effect that such supplemental indenture (if any) has transaction have been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)complied with.
(b) 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.
(c) The Successor Issuer will Entity shall succeed to, and be substituted for, and may exercise every right and power of, for the Issuer or the Parent Guarantor, as applicable, as the case may be, under this Thirty-Fifth Supplemental Indenture (and, if applicable, any Intercreditor Agreement), but in and the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture Notes or the Notes orGuarantee, if each as applicable, any Intercreditor Agreement.. Notwithstanding clause (3) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate with or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Issuer, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer, as the case may be, solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any in a State of the United States or any state thereof, the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the Restricted its Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither the Issuer will not nor the Parent Guarantor, as applicable, shall consolidate with or merge with into or into, transfer or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its assets toto (whether or not the Issuer or the Parent Guarantor, as applicable, is the surviving corporation), any Person, Person unless:
(1) either: (x) the Issuer or the Parent Guarantor, as applicable, is the surviving corporation; or (y)
(i) in the resultingcase of the Issuer, the Person formed by or surviving any such consolidation or transferee Person merger (if other than the “Successor Issuer”) or to which such transfer or lease, will be have been made is a Person corporation organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such Person, as the United Kingdomcase may be, Norway being herein called the “Successor Entity”) expressly assumes, pursuant to supplemental indentures or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Thirty-Ninth Supplemental Indenture as if such Successor Entity were a party to this Thirty-Ninth Supplemental Indenture, ; and (bii) to in the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations case of the Issuer Parent Guarantor, the Successor Entity assumes the Parent Guarantor’s obligations under any Intercreditor Agreement this Thirty-Ninth Supplemental Indenture and the Guarantee, as applicableif such Successor Entity were an original party to this Thirty-Ninth Supplemental Indenture and such Guarantee;
(ii2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default 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;
(iii3) immediately after giving effect if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer or the Parent Guarantor, as applicable, would become subject to such transactiona mortgage, either (a) the Successor Issuer would be able to incur at least €1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)pledge, lien, security interest or (b) the Pro Rata Fixed Charge Coverage Ratio other encumbrance that would not be lower than it was immediately permitted by this Thirty-Ninth 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 giving effect to such transactionto) all indebtedness secured thereby; and,
(iv4) the Issuer or the Parent Guarantor, as applicable, shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, conveyance, transfer or transfer lease and such supplemental indenture (indenture, if any) , comply with this Indenture Section 5.01 and an Opinion of Counsel that all conditions precedent provided for relating to the effect that such supplemental indenture (if any) has transaction have been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)complied with.
(b) 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.
(c) The Successor Issuer will Entity shall succeed to, and be substituted for, and may exercise every right and power of, for the Issuer or the Parent Guarantor, as applicable, as the case may be, under this Thirty-Ninth Supplemental Indenture (and, if applicable, any Intercreditor Agreement), but in and the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture Notes or the Notes orGuarantee, if each as applicable, any Intercreditor Agreement.. Notwithstanding clause (3) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate with or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Issuer, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer, as the case may be, solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any in a State of the United States or any state thereof, the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the Restricted its Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither the Issuer will not nor the Parent Guarantor, as applicable, shall consolidate with or merge with into or into, transfer or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its assets toto (whether or not the Issuer or the Parent Guarantor, as applicable, is the surviving corporation), any Person, Person unless:
(1) either: (x) the Issuer or the Parent Guarantor, as applicable, is the surviving corporation; or (y)
(i) in the resultingcase of the Issuer, the Person formed by or surviving any such consolidation or transferee Person merger (if other than the “Successor Issuer”) or to which such transfer or lease, will be have been made is a Person corporation organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such Person, as the United Kingdomcase may be, Norway being herein called the “Successor Entity”) expressly assumes, pursuant to supplemental indentures or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Thirty-Sixth Supplemental Indenture as if such Successor Entity were a party to this Thirty-Sixth Supplemental Indenture, ; and (bii) to in the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations case of the Issuer Parent Guarantor, the Successor Entity assumes the Parent Guarantor’s obligations under any Intercreditor Agreement this Thirty-Sixth Supplemental Indenture and the Guarantee, as applicableif such Successor Entity were an original party to this Thirty-Sixth Supplemental Indenture and such Guarantee;
(ii2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default 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;
(iii3) immediately after giving effect if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer or the Parent Guarantor, as applicable, would become subject to such transactiona mortgage, either (a) the Successor Issuer would be able to incur at least €1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)pledge, lien, security interest or (b) the Pro Rata Fixed Charge Coverage Ratio other encumbrance that would not be lower than it was immediately permitted by this Thirty-Sixth 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 giving effect to such transactionto) all indebtedness secured thereby; and,
(iv4) the Issuer or the Parent Guarantor, as applicable, shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, conveyance, transfer or transfer lease and such supplemental indenture (indenture, if any) , comply with this Indenture Section 5.01 and an Opinion of Counsel that all conditions precedent provided for relating to the effect that such supplemental indenture (if any) has transaction have been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)complied with.
(b) 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.
(c) The Successor Issuer will Entity shall succeed to, and be substituted for, and may exercise every right and power of, for the Issuer or the Parent Guarantor, as applicable, as the case may be, under this Thirty-Sixth Supplemental Indenture (and, if applicable, any Intercreditor Agreement), but in and the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture Notes or the Notes orGuarantee, if each as applicable, any Intercreditor Agreement.. Notwithstanding clause (3) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate with or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Issuer, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer, as the case may be, solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any in a State of the United States or any state thereof, the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the Restricted its Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will may not consolidate with or merge with or intointo or wind up into (whether or not the Issuer is the surviving corporation), or sell, assign, transfer, lease, convey, transfer, lease consummate a Division as the Dividing Person or otherwise dispose of all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(i1) (a) in the case of a Division where the Issuer 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 resultingDivision, as to any Division Successor that will not be a co-issuer, is permitted by Section 4.10 hereof and (b) the Issuer is the surviving Person or transferee the Person formed by or surviving any such consolidation, merger, Division or wind-up (if other than the “Successor Issuer”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made is a Person organized and 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 States of AmericaKingdom (such Person, any State of as the United States or case may be, being herein called the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland and “Successor Company”);
(2) the Successor Issuer (Company, if not other than the Issuer) will , expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer under this Indenture and the Notes and this Indenture, and (b) pursuant to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicablesupplemental indentures or other documents or instruments;
(ii3) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuingexists;
(iii4) immediately after giving pro forma effect to such transactiontransaction and any related financing or debt reduction transactions, either as if such transactions had occurred at the beginning of the applicable four-quarter period,
(aA) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)) hereof, or or
(bB) the Pro Rata Fixed Charge Coverage Ratio for the Successor Company and the Restricted Subsidiaries would not be lower equal to or greater than it was the Fixed Charge Coverage Ratio for the Issuer and the Restricted Subsidiaries immediately prior to giving effect 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 transactionPerson’s obligations under this Indenture and the Notes; and
(iv6) the Issuer Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, wind up, sale, assignment, transfer, lease, conveyance or transfer other disposition and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)Indenture.
(b) For purposes of this Section 5.01The Successor Company, 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 if not 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.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but and the Notes and in such event the case of a lease of all or substantially all its assets, the predecessor company Issuer will not automatically be released and discharged from its obligations under this Indenture or and the Notes or, if applicable, any Intercreditor Agreement.Notes. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge with or into or wind up into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Subsidiary Guarantor, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer solely for the purpose of changing the legal domicile of the Issuer, reincorporating reorganizing the Issuer under the laws of any member in another state of the European Union or the United States of AmericaStates, any State of the United States or the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the its Restricted Subsidiaries is not materially increased thereby.
(ec) The foregoing provisions (other than Subject to Section 10.06 hereof, no Subsidiary Guarantor will, and the requirements of Section 5.01(a)(ii)) Issuer will not apply to the creation of a new subsidiary as a Restricted permit any Subsidiary of the Issuer.
(f) No Guarantor may:
(i) to, consolidate with or merge with or into any or wind up into (whether or not such Subsidiary Guarantor is the surviving Person;
(ii) ), or sell, assign, transfer, lease, convey, transfer or dispose of, all or substantially all its assets consummate a Division as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any the Dividing Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of a Guarantorrelated transactions, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.any Person unless:
(h1) Notwithstanding (A) such Subsidiary Guarantor is the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor surviving Person or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II)Person formed by or surviving any such consolidation, merger, Division, or 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 Guarantor may consolidate Person organized or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor existing under the laws of any member state the jurisdiction of the European Union organization of such Subsidiary Guarantor or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canada, territory thereof (such Person being herein called the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Person”);
Appears in 1 contract
Samples: Indenture (Catalent, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither the Issuer will not nor the Parent Guarantor, as applicable, shall consolidate with or merge with into or into, transfer or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its assets toto (whether or not the Issuer or the Parent Guarantor, as applicable, is the surviving corporation), any Person, Person unless:
(1) either: (x) the Issuer or the Parent Guarantor, as applicable, is the surviving corporation; or (y)
(i) in the resultingcase of the Issuer, the Person formed by or surviving any such consolidation or transferee Person merger (if other than the “Successor Issuer”) or to which such transfer or lease, will be have been made is a Person corporation organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such Person, as the United Kingdomcase may be, Norway being herein called the “Successor Entity”) expressly assumes, pursuant to supplemental indentures or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Thirty-Fourth Supplemental Indenture as if such Successor Entity were a party to this Thirty-Fourth Supplemental Indenture, ; and (bii) to in the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations case of the Issuer Parent Guarantor, the Successor Entity assumes the Parent Guarantor’s obligations under any Intercreditor Agreement this Thirty-Fourth Supplemental Indenture and the Guarantee, as applicableif such Successor Entity were an original party to this Thirty-Fourth Supplemental Indenture and such Guarantee;
(ii2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default 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;
(iii3) immediately after giving effect if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer or the Parent Guarantor, as applicable, would become subject to such transactiona mortgage, either (a) the Successor Issuer would be able to incur at least €1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)pledge, lien, security interest or (b) the Pro Rata Fixed Charge Coverage Ratio other encumbrance that would not be lower than it was immediately permitted by this Thirty-Fourth 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 giving effect to such transactionto) all indebtedness secured thereby; and,
(iv4) the Issuer or the Parent Guarantor, as applicable, shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, conveyance, transfer or transfer lease and such supplemental indenture (indenture, if any) , comply with this Indenture Section 5.01 and an Opinion of Counsel that all conditions precedent provided for relating to the effect that such supplemental indenture (if any) has transaction have been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)complied with.
(b) 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.
(c) The Successor Issuer will Entity shall succeed to, and be substituted for, and may exercise every right and power of, for the Issuer or the Parent Guarantor, as applicable, as the case may be, under this Thirty-Fourth Supplemental Indenture (and, if applicable, any Intercreditor Agreement), but in and the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture Notes or the Notes orGuarantee, if each as applicable, any Intercreditor Agreement.. Notwithstanding clause (3) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate with or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Issuer, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer, as the case may be, solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any in a State of the United States or any state thereof, the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the Restricted its Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither the Issuer will not nor the Parent Guarantor, as applicable, shall consolidate with or merge with or into, into or sell, assign, convey, transfer, transfer or lease or otherwise dispose of all or substantially all of its assets toto (whether or not the Issuer or the Parent Guarantor, as applicable, is the surviving corporation), any Person, Person unless:
(1) either: (x) the Issuer or the Parent Guarantor, as applicable, is the surviving corporation; or (y)
(i) in the resultingcase of the Issuer, the Person formed by or surviving any such consolidation or transferee Person merger (if other than the “Successor Issuer”) or to which such transfer or lease, will be have been made is a Person corporation organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such Person, as the United Kingdomcase may be, Norway being herein called the “Successor Entity”) expressly assumes, pursuant to supplemental indentures or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Twenty-Sixth Supplemental Indenture as if such Successor Entity were a party to this Twenty-Sixth Supplemental Indenture, ; and (bii) to in the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations case of the Issuer Parent Guarantor, the Successor Entity assumes the Parent Guarantor’s obligations under any Intercreditor Agreement this Twenty-Sixth Supplemental Indenture and the Guarantee, as applicableif such Successor Entity were an original party to this Twenty-Sixth Supplemental Indenture and such Guarantee;
(ii2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default 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;
(iii3) immediately after giving effect if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer or the Parent Guarantor, as applicable, would become subject to such transactiona mortgage, either (a) the Successor Issuer would be able to incur at least €1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)pledge, lien, security interest or (b) the Pro Rata Fixed Charge Coverage Ratio other encumbrance that would not be lower than it was immediately permitted by this Twenty-Sixth 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 giving effect to such transactionto) all indebtedness secured thereby; and,
(iv4) the Issuer or the Parent Guarantor, as applicable, shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger or transfer and such supplemental indenture (indenture, if any) , comply with this Twenty-Sixth Supplemental Indenture and an Opinion of Counsel to the effect that such and, if a supplemental indenture (if any) has been duly authorizedis required in connection with such transaction, executed and delivered and is a legal, valid and binding agreement enforceable against such supplement shall comply with the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) applicable provisions of this Section 5.01(a)Twenty-Sixth Supplemental Indenture.
(b) 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.
(c) The Successor Issuer will Entity shall succeed to, and be substituted for, and may exercise every right and power of, for the Issuer or the Parent Guarantor, as applicable, as the case may be, under this Twenty-Sixth Supplemental Indenture (and, if applicable, any Intercreditor Agreement), but in and the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture Notes or the Notes orGuarantee, if each as applicable, any Intercreditor Agreement.. Notwithstanding clause (3) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate with or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Issuer, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer, as the case may be, solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any in a State of the United States or any state thereof, the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the Restricted its Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will shall not consolidate with or merge with or intointo or wind up into (whether or not the Issuer is the surviving Person), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its assets toconsolidated properties or assets, in one or more related transactions, to any Person, Person unless:
(i1) the resultingIssuer is the surviving Person or the Person formed by or surviving any such consolidation, surviving amalgamation, merger or transferee Person winding up (if other than the “Successor Issuer”) will be or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Person organized and or existing under the laws of any member state the jurisdiction of organization of the European Union or Issuer, the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (the Issuer or such Person, as the United Kingdomcase may be, Norway or Switzerland and being herein called the “Successor Company”; provided that in the case where the Successor Issuer Company is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if not other than the Issuer) will , expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer under this Indenture and the Notes and this Indenture, and (b) pursuant to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicablesupplemental indentures or other documents or instruments;
(ii3) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer Company or any Subsidiary of the Successor Issuer its Restricted Subsidiaries as a result of such transaction as having been incurred Incurred by the Successor Issuer Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iii4) immediately after giving pro forma effect to such transactiontransaction and any related financing transactions, either as if such transactions had occurred at the beginning of the applicable four-quarter period,
(aA) the Successor Company or the Issuer would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)Ratio Test, or or
(bB) the Pro Rata Fixed Charge Coverage Ratio for the Successor Company or the Issuer and its Restricted Subsidiaries would not be lower equal to or greater than it was the Fixed Charge Coverage Ratio for the Issuer immediately prior to giving effect such transaction;
(5) each 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 transactionPerson’s obligations under this Indenture and the Notes; and
(iv6) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, amalgamation or transfer and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)Indenture.
(b) For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or The Successor Company (if other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of than 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.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture and the Notes and (and, if applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assets, Successor Company is other than the predecessor company Issuer) the Issuer will not automatically be released and discharged from its obligations under this Indenture or and the Notes or, if applicable, any Intercreditor AgreementNotes.
(dc) Notwithstanding Section 5.01(a)(ii) 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 Section 5.01(a)(iii), (i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine withshall not permit any Subsidiary Guarantor to, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine withconsolidate, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with amalgamate or merge with or into any Person;
or wind up into (ii) sell, convey, transfer whether or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is not the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person surviving corporation), or (y) the resultingsell, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee andassign, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the saletransfer, lease, conveyance, assignment, transfer, convey or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of related transactions, to any Person (other than the Issuer or a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.) unless:
(h1) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (aA) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor is the surviving Person or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II)Person formed by or surviving any such consolidation, amalgamation, merger or winding up (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Guarantor may consolidate Person organized or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor existing under the laws of any member state the jurisdiction of organization of such Guarantor, as applicable, the European Union or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such surviving Subsidiary Guarantor or such Person, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of case may be, being herein called the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Person”);
Appears in 1 contract
Samples: Indenture (JELD-WEN Holding, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither the Issuer will not nor the Co-Issuer may consolidate with or merge with or intointo or wind up into (whether or not such Person is the surviving corporation), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
(i) the resultingIssuer or the Co-Issuer, as applicable, is the surviving Person or transferee the Person formed by or surviving any such consolidation or merger (if other than the “Successor Issuer or the Co-Issuer”) or the Person to whom such sale, assignment, transfer, lease, conveyance or other disposition will be have been made is a Person corporation, partnership (including a limited partnership), trust or limited liability company organized and or existing under the laws of any member state of the European Union or the United States of AmericaStates, any State of the United States state or commonwealth thereof, the District of Columbia, Canada Columbia or any province territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided, in the case of Canadathe Issuer, that if such Person is not a corporation, a co-obligor of the Notes (which may be the Co-Issuer or another corporation) is a corporation organized or existing under such laws;
(ii) the Successor Company, if other than the Issuer or the Co-Issuer, expressly assumes all the obligations of the Issuer or the Co-Issuer, as applicable, under this Indenture, the United Kingdom, Norway or Switzerland Security Documents and the Successor Issuer (if not the Issuer) will expressly assume (a) by Notes, as applicable pursuant to a supplemental indenture, executed and delivered to the Trustee, indenture or other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iii) immediately after such transaction, no Default exists;
(iv) immediately after giving pro forma effect to such transactiontransaction and any related financing transactions (including the use of proceeds therefrom), either as if such transactions had occurred at the beginning of the applicable four-quarter period,
(aA) the Successor Issuer Company or the Issuer, as applicable, would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test Consolidated Leverage Ratio test set forth in Section 4.09(a), or ) hereof or
(bB) the Pro Rata Fixed Charge Coverage Consolidated Leverage Ratio for the Successor Company or the Issuer, as applicable, and its Restricted Subsidiaries would not be lower less than it was or equal to such ratio for the Issuer and its Restricted Subsidiaries immediately prior to giving effect to such transaction; and
(ivv) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with is permitted by this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a).
(b) 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.
(c) Indenture. The Successor Issuer Company will succeed to, and be substituted for, and may exercise every right and power ofthe Issuer or the Co-Issuer, as applicable, under this Indenture, the Issuer under this Indenture (Security Documents and the Notes, as applicable, and, if applicable, any Intercreditor Agreement), but except in the case of a lease of all or substantially all its assetslease, the predecessor company Issuer or the Co-Issuer, as applicable, will not automatically be released and discharged from its obligations under this Indenture or Indenture, the Notes or, if applicable, any Intercreditor Agreement.Security Documents and the Notes. Notwithstanding clauses (iii) and (iv) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of (other than the Issuer Issuers) may consolidate or otherwise combine with, 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 Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii; and
(2) and Section 5.01(a)(iii), the Issuer or the Co-Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer solely for the purpose of changing the legal domicile of the Issuer, reincorporating reorganizing the Issuer under the laws of any member state of the European Union or the United States of America, any State Co-Issuer in a state or commonwealth of the United States or States, the District of Columbia, Canada Columbia or any province territory thereof of Canada, for the United Kingdom, Norway sole purpose of forming or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is collapsing a holding company structure in a manner not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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 prohibited by this Indenture.
(gb) For purposes of this Subject to Section 5.0111.06, no Guarantor will, and the saleIssuer 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, conveyance, assignment, transfer, convey or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of a Guarantorrelated transactions, which properties and assets, if held by to any Person unless:
(i) (A) such Guarantor instead of is the surviving Person or the Person formed by or surviving any such Subsidiaries, would constitute all consolidation or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of merger (if other than such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II)or to which such sale, (a) any Restricted Subsidiary may consolidate assignment, transfer, lease, conveyance or otherwise combine with, merge into other disposition will have been made is a Person organized or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor existing under the laws of any member state the jurisdiction of organization of such Guarantor, as the European Union case may be, or the United States of America, any State laws of the United States States, any state or commonwealth thereof, the District of Columbia, Canada Columbia or any province of Canadaterritory thereof (such Guarantor or such Person, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of case may be, being herein called the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Person”);
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will and the Co-Issuer each may not consolidate with or merge with or intointo or wind up into (whether or not the Issuer is the surviving corporation), or sell, assign, transfer, lease, convey, transfer, lease consummate a Division as the Dividing Person or otherwise dispose of all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(ia) in the 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 resultingDivision, 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 transferee the Person formed by or surviving any such consolidation, merger, Division or wind-up (if other than the “Successor Issuer”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made is a Person organized and 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 Union, Switzerland, or the United States of AmericaKingdom (such Person, any State of as the United States case may be, being herein called the “Successor Company”);
(2) the Successor Company, if other than the Issuer or the District of ColumbiaCo-Issuer, Canada or any province of Canadaas applicable, the United Kingdom, Norway or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer or the Co-Issuer, as applicable, under this Indenture and the Notes and this Indenture, and (b) pursuant to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicablesupplemental indentures or other documents or instruments;
(ii3) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuingexists;
(iii4) only in the case of the Issuer, immediately after giving pro forma effect to such transactiontransaction and any related financing or debt reduction transactions, either as if such transactions had occurred at the beginning of the applicable four-quarter period,
(aA) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)) hereof, or or
(bB) the Pro Rata Fixed Charge Coverage Ratio for the Successor Company and the Restricted Subsidiaries would not be lower equal to or greater than it was the Fixed Charge Coverage Ratio for the Issuer and the Restricted Subsidiaries immediately prior to giving effect 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 transactionPerson’s obligations under this Indenture and the Notes; and
(iv6) the Issuer Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, wind up, sale, assignment, transfer, lease, conveyance or transfer other disposition and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion Indenture; provided that the Trustee shall be under no obligation to inform Holders of Counsel to the effect that occurrence of any such supplemental indenture (if any) has been duly authorizedconsolidation, executed and delivered and is a legalmerger, valid and binding agreement enforceable against the Successor Issuer; providedwind-up, that in giving an Opinion of Counselsale, counsel may rely on an Officer’s Certificate as to any matters of factassignment, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)transfer, lease, conveyance or other disposition.
(b) For purposes of this Section 5.01The Successor Company, if not the sale, lease, conveyance, assignment, transfer, Issuer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Co-Issuer, which properties and assetsas applicable, 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.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer or the Co-Issuer, as applicable, under this Indenture (andand the Notes and in such event the Issuer or the Co-Issuer, if as applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assets, the predecessor company will not automatically be released and discharged from its obligations under this Indenture or and the Notes or, if applicable, any Intercreditor Agreement.Notes. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge with or into or wind up into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Subsidiary Guarantor, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer or the Co-Issuer, as applicable, may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized thereof solely for the purpose of changing reorganizing the legal domicile 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), reincorporating the Issuer under the laws of or in any member state of the European Union Union, Switzerland, or the United States of AmericaKingdom (in either case), any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the its Restricted Subsidiaries is not materially increased thereby.
(ec) The foregoing provisions (other than Subject to Section 10.06 hereof, no Subsidiary Guarantor will, and the requirements of Section 5.01(a)(ii)) Issuer will not apply to the creation of a new subsidiary as a Restricted permit any Subsidiary of the Issuer.
(f) No Guarantor may:
(i) to, consolidate with or merge with or into any or wind up into (whether or not such Subsidiary Guarantor is the surviving Person;
(ii) ), or sell, assign, transfer, lease, convey, transfer or dispose of, all or substantially all its assets consummate a Division as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any the Dividing Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of a Guarantorrelated transactions, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.any Person unless:
(h1) Notwithstanding (A) such Subsidiary Guarantor is the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor surviving Person or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II)Person formed by or surviving any such consolidation, merger, Division, or 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 Guarantor may consolidate Person organized or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor 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, any member state of the European Union Union, Switzerland, or the United States of America, any State of Kingdom (such Person being herein called the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Person”);
Appears in 1 contract
Samples: Indenture (Organon & Co.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will shall not consolidate with or merge with or intointo or wind up into (whether or not the Issuer is the surviving corporation), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(i1) either: (x) the resultingIssuer is the surviving corporation; or (y) the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, surviving assignment, transfer, lease, conveyance or transferee Person (the “Successor Issuer”) other disposition will be have been made is a Person corporation organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such Person, as the United Kingdomcase may be, Norway being herein called the “Successor Company”) expressly assumes, pursuant to supplemental indentures or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this the Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(ii2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default 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;
(iii3) immediately after giving effect to if, as a result of any such transactionconsolidation or merger or such conveyance, either (a) transfer or lease, properties or assets of the Successor Issuer would be able become subject to incur at least €1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)a mortgage, pledge, lien, security interest or (b) the Pro Rata Fixed Charge Coverage Ratio other encumbrance that would not be lower than it was immediately permitted by this Indenture, the Issuer or such Successor Company 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 giving effect to such transactionto) all indebtedness secured thereby; and,
(iv4) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger or transfer and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion of Counsel to the effect that such and, if a supplemental indenture (if any) has been duly authorizedis required in connection with such transaction, executed and delivered and is a legal, valid and binding agreement enforceable against such supplement shall comply with the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) applicable provisions of this Section 5.01(a)Indenture.
(b) For purposes of this Section 5.01Notwithstanding the foregoing, the salerestrictions in Section 5.01(a) shall not apply in connection with the full and unconditional assumption (whether via merger, lease, conveyance, assignment, transfer, exchange or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries otherwise) of the Issuer, which properties ’s obligations under the Notes and assets, if held this Indenture by HCA Inc. in accordance with 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 IssuerSection 5.03 hereof.
(c) The Successor Issuer will Company shall succeed to, and be substituted forfor the Issuer, and as the case may exercise every right and power ofbe, the Issuer under this Indenture and the Notes, as applicable. Notwithstanding clause (and, if applicable, any Intercreditor Agreement), but in the case 3) of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture or the Notes or, if applicable, any Intercreditor Agreement.Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate with or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Issuer, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer, as the case may be, solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any in a State of the United States or any state thereof, the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the its Restricted Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
Appears in 1 contract
Samples: Indenture (Hca Inc/Tn)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will shall not consolidate with or merge with or intointo or wind up into (whether or not the Issuer is the surviving Person), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its assets toconsolidated properties or assets, in one or more related transactions, to any Person, Person unless:
(i1) the resultingIssuer is the surviving Person or the Person formed by or surviving any such consolidation, surviving amalgamation, merger or transferee winding up (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 the jurisdiction of organization of the Issuer, the laws of the United States, any state thereof, the District of Columbia, or any territory thereof or the laws of any member of the European Union (as it is constituted on the Issue Date) (the Issuer or such Person, as the case may be, being herein called the “Successor Issuer”) will be a Person Company” and any such transaction resulting in an entity organized and or existing under the laws of any member state of the European Union becoming a Successor Company, a “European Domicile Transaction”); provided that (i) if such entity is not organized or existing under the United States of America, any State laws of the United States States, any state or territory thereof or the District of Columbia, Canada an obligor of the Notes is organized or any province of Canada, existing under such laws and (ii) in the United Kingdom, Norway or Switzerland and case where the Successor Issuer Company is not a corporation, a co-obligor of the Notes is a corporation;
(2) the Successor Company, if not other than the Issuer) will , expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer under this Indenture and the Notes and this Indenture, and (b) pursuant to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicablesupplemental indentures or other documents or instruments;
(ii3) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer Company or any Subsidiary of the Successor Issuer its Restricted Subsidiaries as a result of such transaction as having been incurred Incurred by the Successor Issuer Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iii4) immediately after giving pro forma effect to such transactiontransaction and any related financing transactions, either as if such transactions had occurred at the beginning of the applicable four-quarter period,
(aA) the Successor Company or the Issuer would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)Ratio Test, or or
(bB) the Pro Rata Fixed Charge Coverage Ratio for the Successor Company or the Issuer and its Restricted Subsidiaries would not be lower equal to or greater than it was the Fixed Charge Coverage Ratio for the Issuer immediately prior to giving effect such transaction;
(5) each 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 transactionPerson’s obligations under this Indenture and the Notes; and
(iv6) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, amalgamation or transfer and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)Indenture.
(b) For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or The Successor Company (if other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of than 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.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture and the Notes and (and, if applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assets, Successor Company is other than the predecessor company Issuer) the Issuer will not automatically be released and discharged from its obligations under this Indenture or and the Notes or, if applicable, any Intercreditor AgreementNotes.
(dc) Notwithstanding Section 5.01(a)(ii) 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 Section 5.01(a)(iii), (i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or shall not permit any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine withto, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii)consolidate, the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with amalgamate or merge with or into any Person;
or wind up into (ii) sell, convey, transfer whether or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is not the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person surviving corporation), or (y) the resultingsell, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee andassign, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the saletransfer, lease, conveyance, assignment, transfer, convey or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of related transactions, to any Person (other than the Issuer or a Guarantor) unless:
(1) (A) any Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation, merger or winding up (if other than such Guarantor) or to which properties and assetssuch sale, if held by such Guarantor instead of such Subsidiariesassignment, would constitute all transfer, lease, conveyance or substantially all other disposition shall have been made is a Person organized or existing under the laws of the properties and assets jurisdiction of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets organization of such Guarantor.
(h) Notwithstanding , as applicable, the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile laws of the Guarantor reincorporating United States, any state thereof, the Guarantor under District of Columbia, or any territory thereof or the laws of any member state of the European Union (as it is constituted on the Issue Date) (such surviving Guarantor or the United States of Americasuch Person, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of case may be, being herein called the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Person”);
Appears in 1 contract
Samples: Indenture (JELD-WEN Holding, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will may not consolidate with or merge with or intointo or wind up into (whether or not the Issuer is the surviving corporation), or sell, assign, transfer, lease, convey, transfer, lease consummate a Division as the Dividing Person or otherwise dispose of all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(ia) in the case of a Division where the Issuer is the Dividing Person, either (x) all Division Successors shall become co-Issuer of the Notes (this clause (x), a “Permitted Co-Issuer Division”) or (y) the resultingDivision, as to any Division Successor that will not be a co-issuer, is permitted by Section 4.10 hereof and (b) the Issuer is the surviving Person or transferee the Person formed by or surviving any such consolidation, merger, Division or wind-up (if other than the “Successor Issuer”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made is a Person organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof(such Person, as the United Kingdomcase may be, Norway or Switzerland and being herein called the “Successor Company”);
(2) the Successor Company, if other than the Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer under this Indenture and the Notes and this Indenture, and (b) pursuant to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicablesupplemental indentures or other documents or instruments;
(ii3) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuingexists;
(iii4) immediately after giving pro forma effect to such transactiontransaction and any related financing or debt reduction transactions, either as if such transactions had occurred at the beginning of the applicable four-quarter period,
(aA) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)) hereof, or or
(bB) the Pro Rata Fixed Charge Coverage Ratio for the Successor Company and the Restricted Subsidiaries would not be lower equal to or greater than it was the Fixed Charge Coverage Ratio for the Issuer and the Restricted Subsidiaries immediately prior to giving effect 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 transactionPerson’s obligations under this Indenture and the Notes; and
(iv6) the Issuer Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, wind up, sale, assignment, transfer, lease, conveyance or transfer other disposition and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion Indenture; provided that the Trustee shall be under no obligation to inform Holders of Counsel to the effect that occurrence of any such supplemental indenture (if any) has been duly authorizedconsolidation, executed and delivered and is a legalmerger, valid and binding agreement enforceable against the Successor Issuer; providedwind-up, that in giving an Opinion of Counselsale, counsel may rely on an Officer’s Certificate as to any matters of factassignment, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)transfer, lease, conveyance or other disposition.
(b) 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 assetsThe Successor Company, if held by not 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.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but and the Notes and in such event the case of a lease of all or substantially all its assets, the predecessor company Issuer will not automatically be released and discharged from its obligations under this Indenture or and the Notes or, if applicable, any Intercreditor Agreement.Notes. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge with or into or wind up into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Subsidiary Guarantor, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized thereof solely for the purpose of changing the legal domicile of the Issuer, reincorporating reorganizing the Issuer under the laws of any member in another state of the European Union or the United States of AmericaStates, any State of the United States or the District of Columbia, Canada Columbia or any province of Canadaterritory thereof, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the its Restricted Subsidiaries is not materially increased thereby.
(ec) The foregoing provisions (other than Subject to Section 10.06 hereof, on and following the requirements of Section 5.01(a)(ii)) Issue Date, no Subsidiary Guarantor will, and the Issuer will not apply to the creation of a new subsidiary as a Restricted permit any Subsidiary of the Issuer.
(f) No Guarantor may:
(i) to, consolidate with or merge with or into any or wind up into (whether or not such Subsidiary Guarantor is the surviving Person;
(ii) ), or sell, assign, transfer, lease, convey, transfer or dispose of, all or substantially all its assets consummate a Division as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any the Dividing Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of a Guarantorrelated transactions, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.any Person unless:
(h1) Notwithstanding (A) such Subsidiary Guarantor is the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor surviving Person or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II)Person formed by or surviving any such consolidation, merger, Division, or 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 Guarantor may consolidate Person organized or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor existing under the laws of any member state the jurisdiction of the European Union organization of such Subsidiary Guarantor or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canada, territory thereof(such Person being herein called the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Person”);
Appears in 1 contract
Samples: Indenture (Cano Health, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will shall not consolidate with or merge with or into or wind up into, or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
(i1) the resultingIssuer is the surviving Person or the Person formed by or surviving any such consolidation, surviving merger or transferee wind up (if other than the Issuer) or the Person to whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership (the “Successor Issuer”) will be including a Person limited partnership), trust or limited liability company organized and or existing under the laws of any member state of the European Union or the United States of AmericaStates, any State of the United States state or commonwealth thereof, the District of Columbia, Canada Columbia or any province territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided 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 Canada, the United Kingdom, Norway or Switzerland and Notes;
(2) the Successor Issuer (Company, if not other than the Issuer) will , expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer under this Indenture, the Notes and this Indenture, and (b) the Registration Rights Agreement pursuant to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicablea supplemental indenture;
(ii3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;related financing transactions:
(iii) immediately after giving effect to such transaction, either (aA) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test Consolidated Net Leverage Ratio test set forth in Section 4.09(a), or ; or
(bB) the Pro Rata Fixed Charge Coverage Consolidated Net Leverage Ratio for the Successor Company and its Restricted Subsidiaries would not be lower less than it was or equal to such ratio for the Issuer and its Restricted Subsidiaries immediately prior to giving effect to such transaction; and
(iv5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger or transfer and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor IssuerIndenture; provided, provided that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i3) through and (iii4) of this Section 5.01(a).
(b) 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.
(c) above. The Successor Issuer will Company shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but in and the case of a lease of all or substantially all its assets, Notes and the predecessor company will not Issuer shall automatically be released and discharged from its obligations under this Indenture or and the Notes or, if applicable, any Intercreditor Agreement.
except in the case of a lease. Notwithstanding the foregoing clauses (d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii3), (i4) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and (ii5), which do not apply to transactions referred to in this sentence:
(A) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerlandwind up into, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, conveyassign, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the saletransfer, lease, conveyance, assignment, transfer, convey or other disposition otherwise dispose of all or substantially all of the its properties and or assets of in one or more Subsidiaries related transactions to, the Issuer or any Restricted Subsidiary, and
(B) the Issuer may merge with an Affiliate of the Issuer solely for the purpose or effect of reorganizing the Issuer in a Guarantorstate or commonwealth of the United States, which properties the District of Columbia or any territory thereof.
(b) No Guarantor shall, and assets, if held by the Issuer shall not permit any such Guarantor instead of such Subsidiariesto, would constitute all consolidate or substantially all of the properties and assets of such Guarantor on a consolidated basismerge with or into or wind up into, shall be deemed to be the transfer 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 properties and assets of surviving Person or the Person formed by or surviving any such consolidation, merger or wind up (if other than such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II)or to which such sale, (a) any Restricted Subsidiary may consolidate assignment, transfer, lease, conveyance or otherwise combine with, merge into other disposition will have been made is a Person organized or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor existing under the laws of any member state the jurisdiction of organization of such Guarantor, as the European Union case may be, or the United States of America, any State laws of the United States States, any state or commonwealth thereof, the District of Columbia, Canada Columbia or any province of Canadaterritory thereof (such Guarantor or such Person, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of case may be, being herein called the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Guarantor”);
Appears in 1 contract
Samples: Indenture (Meredith Corp)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will Company shall not consolidate with or merge with or intointo (whether or not the Company is the surviving entity), or sell, assign, convey, transfer, lease 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:
another Person unless (i) the resultingCompany is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, surviving assignment, transfer, lease, conveyance or transferee Person (the “Successor Issuer”) will be other disposition shall have been made is a Person corporation organized and or existing under the laws of any member state of the European Union or the United States of AmericaStates, any State of the United States state thereof or the District of Columbia, Canada ; (ii) the Person formed by or surviving any province of Canada, the United Kingdom, Norway such consolidation or Switzerland and the Successor Issuer merger (if not other than the IssuerCompany) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition will expressly assume (a) by have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture, executed and delivered to the Trustee, indenture in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Indenture, and ; (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(iiiii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall exists; (iv) the Company or the Person formed by or surviving any such consolidation or merger, or to which such sale, assignment, transfer, lease, conveyance or other disposition will have occurred and be continuing;
(iii) immediately been made will, at the time of such transaction after giving pro forma effect to thereto as if such transactiontransaction had occurred at the beginning of the applicable four-quarter period, either (a) the Successor Issuer would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a), or (b) the Pro Rata Fixed Charge Coverage Ratio would not be lower than it was immediately prior to giving effect to such transaction; and
test set forth in the first paragraph of Section 4.12 hereof. The foregoing clause (iv) will not prohibit (a) a merger between the Issuer shall have delivered to the Trustee Company and a Wholly Owned Subsidiary of an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a).
(b) For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all Affiliate 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.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture or the Notes or, if applicable, any Intercreditor Agreement.
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized Company created solely for the purpose of changing holding the legal domicile Capital Stock of the IssuerCompany, (b) a merger between the Company and a Wholly Owned Restricted Subsidiary or (c) a merger between the Company and an Affiliate incorporated solely for the purpose of reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any Company in another State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as as, in each case, the amount of Indebtedness of the Issuer Company and the its Restricted Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
Appears in 1 contract
Samples: Indenture (Quaker Holding Co)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will may not consolidate with or merge with or into or wind up into, consummate a Division as the Dividing Person (whether or not the Issuer is the surviving Person), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of (including, in each case, by way of a Division) all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(i) the resultingIssuer is the surviving Person or the Person formed by or surviving any such consolidation, surviving amalgamation, merger, winding up or transferee Person Division (if other than the “Successor Issuer”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made, is a Person organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the laws of the United States of America, any State of the United States or state thereof, the District of Columbia, Canada or any province 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 Canada, the United Kingdom, Norway or Switzerland and Notes is a corporation;
(ii) the Successor Issuer (Company, if not other than the Issuer) will , expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer under the Notes and this Indenture, and (b) pursuant to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer supplemental indentures or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer other documents or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuinginstruments;
(iii) immediately after such transaction, no Default exists;
(iv) immediately after giving pro forma effect to such transactiontransaction and any related financing transactions, either as if such transactions had occurred at the beginning of the applicable four-quarter period:
(aA) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a), or Test; or
(bB) the Pro Rata Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would not be lower equal to or greater than it was the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries immediately prior to giving effect such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, in which case clause (i)(B) of Section 5.01(e) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such transactionPerson’s obligations under this Indenture and the Notes;
(vi) if the Successor Company is not a corporation, 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
(ivvii) the Issuer or, if applicable, the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, Division or transfer and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)Indenture.
(b) 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.
(c) The Successor Issuer will Company shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (andIndenture, if the Guarantees and the Notes, as applicable, any Intercreditor Agreement), but in and the case of a lease of all or substantially all its assets, the predecessor company will not Issuer shall automatically be released and discharged from its obligations under this Indenture or Indenture, the Notes or, if applicable, any Intercreditor AgreementGuarantees and the Notes.
(dc) Notwithstanding Section 5.01(a)(iiclauses (iii) and (iv) of Section 5.01(a)(iii), 5.01(a) hereof:
(i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, 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 Issuer or any Guarantor and a Guarantor; and
(ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with amalgamate or merge with, wind-up into or consummate a Division as a Dividing Person, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets to an Affiliate incorporated of the Issuer or organized consummate a Division as the Dividing Person with an Affiliate of the Issuer solely for the purpose of changing the legal domicile of the Issuer, reincorporating reorganizing the Issuer under the laws of any member state of the European Union or in the United States of America, any State of the United States or state thereof, the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the its Restricted Subsidiaries is not increased thereby.
(ed) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) Co-Issuer may not, directly or indirectly, consolidate with or merge with or into any Person;
or wind up into, consummate a Division as the Dividing Person (ii) whether or not the Co-Issuer is the surviving corporation), or sell, conveyassign, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the saletransfer, lease, conveyance, assignment, transfer, convey or other disposition otherwise dispose of all or substantially all of the Co-Issuer’s properties and assets of or assets, in one or more Subsidiaries of related transactions, to any Person, unless:
(i) (A) concurrently therewith, a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all corporate Wholly-Owned Subsidiary that is a Restricted Subsidiary of the properties Issuer organized and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor validly existing under the laws of any member state of the European Union or the United States of America, any State of the United States or state thereof, the District of Columbia, Canada Columbia or any province territory thereof (which may be the continuing Person as a result of Canada, such transaction) expressly assumes all the United Kingdom, Norway or Switzerland, or changing the legal form obligations of the Guarantor so long as Co-Issuer under the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.Notes 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 Neither the Issuer will not nor the Parent Guarantor, as applicable, shall consolidate with or merge with or into, into or sell, assign, convey, transfer, transfer or lease or otherwise dispose of all or substantially all of its assets toto (whether or not the Issuer or the Parent Guarantor, as applicable, is the surviving corporation), any Person, Person unless:
(1) either: (x) the Issuer or the Parent Guarantor, as applicable, is the surviving corporation; or (y)
(i) in the resultingcase of the Issuer, the Person formed by or surviving any such consolidation or transferee Person merger (if other than the “Successor Issuer”) or to which such transfer or lease, will be have been made is a Person corporation organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such Person, as the United Kingdomcase may be, Norway being herein called the “Successor Entity”) expressly assumes, pursuant to supplemental indentures or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Twenty-Second Supplemental Indenture as if such Successor Entity were a party to this Twenty-Second Supplemental Indenture, ; and (bii) to in the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations case of the Issuer Parent Guarantor, the Successor Entity assumes the Parent Guarantor’s obligations under any Intercreditor Agreement this Twenty-Second Supplemental Indenture and the Guarantee, as applicableif such Successor Entity were an original party to this Twenty-Second Supplemental Indenture and such Guarantee;
(ii2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default 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;
(iii3) immediately after giving effect if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer or the Parent Guarantor, as applicable, would become subject to such transactiona mortgage, either (a) the Successor Issuer would be able to incur at least €1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)pledge, lien, security interest or (b) the Pro Rata Fixed Charge Coverage Ratio other encumbrance that would not be lower than it was immediately permitted by this Twenty-Second 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 giving effect to such transactionto) all indebtedness secured thereby; and,
(iv4) the Issuer or the Parent Guarantor, as applicable, shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger or transfer and such supplemental indenture (indenture, if any) , comply with this Twenty-Second Supplemental Indenture and an Opinion of Counsel to the effect that such and, if a supplemental indenture (if any) has been duly authorizedis required in connection with such transaction, executed and delivered and is a legal, valid and binding agreement enforceable against such supplement shall comply with the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) applicable provisions of this Section 5.01(a)Twenty-Second Supplemental Indenture.
(b) 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.
(c) The Successor Issuer will Entity shall succeed to, and be substituted for, and may exercise every right and power of, for the Issuer or the Parent Guarantor, as applicable, as the case may be, under this Twenty-Second Supplemental Indenture (and, if applicable, any Intercreditor Agreement), but in and the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture Notes or the Notes orGuarantee, if each as applicable, any Intercreditor Agreement.. Notwithstanding clause (3) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate with or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Issuer, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer, as the case may be, solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any in a State of the United States or any state thereof, the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the Restricted its Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither the Issuer will not nor the Parent Guarantor, as applicable, shall consolidate with or merge with into or into, transfer or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its assets toto (whether or not the Issuer or the Parent Guarantor, as applicable, is the surviving corporation), any Person, Person unless:
(1) either: (x) the Issuer or the Parent Guarantor, as applicable, is the surviving corporation; or (y)
(i) in the resultingcase of the Issuer, the Person formed by or surviving any such consolidation or transferee Person merger (if other than the “Successor Issuer”) or to which such transfer or lease, will be have been made is a Person corporation organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such Person, as the United Kingdomcase may be, Norway being herein called the “Successor Entity”) expressly assumes, pursuant to supplemental indentures or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Thirty-Seventh Supplemental Indenture as if such Successor Entity were a party to this Thirty-Seventh Supplemental Indenture, ; and (bii) to in the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations case of the Issuer Parent Guarantor, the Successor Entity assumes the Parent Guarantor’s obligations under any Intercreditor Agreement this Thirty-Seventh Supplemental Indenture and the Guarantee, as applicableif such Successor Entity were an original party to this Thirty-Seventh Supplemental Indenture and such Guarantee;
(ii2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default 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;
(iii3) immediately after giving effect if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer or the Parent Guarantor, as applicable, would become subject to such transactiona mortgage, either (a) the Successor Issuer would be able to incur at least €1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)pledge, lien, security interest or (b) the Pro Rata Fixed Charge Coverage Ratio other encumbrance that would not be lower than it was immediately permitted by this Thirty-Seventh 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 giving effect to such transactionto) all indebtedness secured thereby; and,
(iv4) the Issuer or the Parent Guarantor, as applicable, shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, conveyance, transfer or transfer lease and such supplemental indenture (indenture, if any) , comply with this Indenture Section 5.01 and an Opinion of Counsel that all conditions precedent provided for relating to the effect that such supplemental indenture (if any) has transaction have been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)complied with.
(b) 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.
(c) The Successor Issuer will Entity shall succeed to, and be substituted for, and may exercise every right and power of, for the Issuer or the Parent Guarantor, as applicable, as the case may be, under this Thirty-Seventh Supplemental Indenture (and, if applicable, any Intercreditor Agreement), but in and the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture Notes or the Notes orGuarantee, if each as applicable, any Intercreditor Agreement.. Notwithstanding clause (3) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate with or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Issuer, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer, as the case may be, solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any in a State of the United States or any state thereof, the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the Restricted its Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will shall not consolidate with or merge with or into or wind up into, or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
(i1) the resultingIssuer is the surviving Person or the Person formed by or surviving any such consolidation, surviving merger or transferee wind up (if other than the Issuer) or the Person to whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership (the “Successor Issuer”) will be including a Person limited partnership), trust or limited liability company organized and or existing under the laws of any member state of the European Union or the United States of AmericaStates, any State of the United States state or commonwealth thereof, the District of Columbia, Canada Columbia or any province territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided 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 Canada, the United Kingdom, Norway or Switzerland and Notes;
(2) the Successor Issuer (Company, if not other than the Issuer) will , expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer under the Notes and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Collateral Documents and the Registration Rights Agreement as applicablepursuant to a supplemental indenture;
(ii3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;related financing transactions:
(iii) immediately after giving effect to such transaction, either (aA) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test Consolidated Net Leverage Ratio test set forth in Section 4.09(a), or ; or
(bB) the Pro Rata Fixed Charge Coverage Consolidated Net Leverage Ratio for the Successor Company and its Restricted Subsidiaries would not be lower less than it was or equal to such ratio for the Issuer and its Restricted Subsidiaries immediately prior to giving effect to such transaction; and
(iv5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger or transfer and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor IssuerIndenture; provided, provided that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i3) through and (iii4) of this Section 5.01(a).
(b) 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.
(c) above. The Successor Issuer will Company shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but in and the case of a lease of all or substantially all its assets, Notes and the predecessor company will not Issuer shall automatically be released and discharged from its obligations under this Indenture or and the Notes or, if applicable, any Intercreditor Agreement.
except in the case of a lease. Notwithstanding the foregoing clauses (d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii3), (i4) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and (ii5), which do not apply to transactions referred to in this sentence:
(A) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerlandwind up into, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, conveyassign, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the saletransfer, lease, conveyance, assignment, transfer, convey or other disposition otherwise dispose of all or substantially all of the its properties and or assets of in one or more Subsidiaries related transactions to, the Issuer or any Restricted Subsidiary, and
(B) the Issuer may merge with an Affiliate of the Issuer solely for the purpose or effect of reorganizing the Issuer in a Guarantorstate or commonwealth of the United States, which properties the District of Columbia or any territory thereof.
(b) No Guarantor shall, and assets, if held by the Issuer shall not permit any such Guarantor instead of such Subsidiariesto, would constitute all consolidate or substantially all of the properties and assets of such Guarantor on a consolidated basismerge with or into or wind up into, shall be deemed to be the transfer 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 properties and assets of surviving Person or the Person formed by or surviving any such consolidation, merger or wind up (if other than such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II)or to which such sale, (a) any Restricted Subsidiary may consolidate assignment, transfer, lease, conveyance or otherwise combine with, merge into other disposition will have been made is a Person organized or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor existing under the laws of any member state the jurisdiction of organization of such Guarantor, as the European Union case may be, or the United States of America, any State laws of the United States States, any state or commonwealth thereof, the District of Columbia, Canada Columbia or any province of Canadaterritory thereof (such Guarantor or such Person, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of case may be, being herein called the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Guarantor”);
Appears in 1 contract
Samples: Indenture (Meredith Corp)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will shall not consolidate consolidate, merge or amalgamate with or merge with into or intowind up into (whether or not the Issuer is the surviving Person), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(i1) The Issuer is the resultingsurviving Person or the Person formed by or surviving any such consolidation, surviving amalgamation or transferee Person (the “Successor Issuer”) merger or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made is a Person organized and or existing under the laws of any member state of the European Union or the United States of AmericaStates, any State of the United States or state thereof, the District of Columbia, Canada Columbia or any province territory thereof (such Person, as the case may be, being herein called the “Successor”);
(2) the Successor expressly assumes all the obligations of Canada, the United Kingdom, Norway or Switzerland Issuer under this Indenture and the Successor Issuer (if not the Issuer) will expressly assume (a) by Notes pursuant to supplemental indenture, executed and delivered to the Trustee, indentures or other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(ii3) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, either (a) the Successor Issuer would be able to incur at least €1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a), or (b) the Pro Rata Fixed Charge Coverage Ratio would not be lower than it was immediately prior to giving effect to such transactionexists; and
(iv4) the Issuer shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, amalgamation, merger or transfer and such supplemental indenture (if any) comply complies with this Indenture and an Officers’ Certificate and Opinion of Counsel to the effect that any such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of permitted or authorized by this Section 5.01(a)Indenture.
(b) For purposes Notwithstanding clause (3) 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 6.01(a),
(1) any 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.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture or the Notes or, if applicable, any Intercreditor Agreement.
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i) any Restricted Subsidiary of the Issuer ’s Subsidiaries may consolidate or otherwise combine with, amalgamate with or merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii; and
(2) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with consolidate, amalgamate or merge into with an Affiliate incorporated or organized of the Issuer solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member in another state of the European Union or in the United States of AmericaStates, any State of the United States or the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the Restricted its Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
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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 Issuer will shall not consolidate with or merge with or intointo or wind up into (whether or not the Issuer is the surviving corporation), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(i1) the resultingIssuer is the surviving corporation or the Person formed by or surviving any such consolidation, surviving wind-up or transferee Person merger (if other than the “Successor Issuer”) will be or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Person corporation, partnership, limited liability company or trust organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province territory thereof (such Person, as the case may be, being herein called the “Successor Company”);
(2) the Successor Company, if other than the Issuer, and, to the extent the Successor Company is not a corporation, a Subsidiary of Canadasuch 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 United KingdomDistrict of Columbia or any territory thereof, Norway or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer under the Notes Notes, this Indenture and this Indenturethe Security Documents to which it is a party, and (b) pursuant to a supplemental indenture or other document or instrument in form reasonably satisfactory to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicableTrustee;
(ii3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions (and treating including, without limitation, any transaction the proceeds of which are applied to reduce the Indebtedness that becomes an obligation of the Successor Issuer Company or any Subsidiary the Issuer, as the case may be), as if such transactions had occurred at the beginning of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;applicable four-quarter period,
(iii) immediately after giving effect to such transaction, either (aA) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test Ratio test set forth in Section 4.09(a)) hereof, or or
(bB) the Pro Rata such Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would not be lower greater than it was such ratio for the Issuer and its Restricted Subsidiaries immediately prior to giving such transaction;
(5) in connection with a Permitted Asset Transfer, the rating on the Notes shall not have been downgraded by two or more of the Rating Agencies (or, if the Notes are rated by only one Rating Agency at the time of the first notice of such Permitted Asset Transfer, such Rating Agency) during the period commencing 30 days prior to the first public notice of the occurrence of a Permitted Asset Transfer or the intention of the Issuer or any Subsidiary thereof to effect a Permitted Asset Transfer and ending on the date 60 days after such notice relative to the rating at the start of such period;
(6) each Guarantor, unless it is the other party to the transactions described above, in which case clause (1)(B) of Section 5.01(c) 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 transactionPerson’s obligations under this Indenture and the Notes; and
(iv7) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, wind-up, merger or transfer and such supplemental indenture (indenture, if any) , comply with this Indenture and an Opinion of Counsel to the effect that and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against shall comply with the Successor Issuerapplicable provisions of this Indenture; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a).
(b) For for the purposes of this Section 5.015.01 only, a transaction meeting the requirements of the proviso to clause (1) under the definition of “Change of Control” shall not be deemed to be a sale, lease, conveyance, assignment, transfer, conveyance or other disposition of all or substantially all of the properties and or assets of one or more Subsidiaries the Issuer and its Subsidiaries. For the avoidance of doubt, the Issuer may consummate a transaction meeting the requirements of the Issuerproviso to clause (1) under the definition of “Change of Control” without complying with this Section 5.01, which properties and assets, if held by the Issuer instead determination in the preceding proviso shall not affect the determination of such Subsidiaries, would constitute what constitutes all or substantially all of the properties and assets of the Issuer on and its Subsidiaries under any other agreement to which the Issuer is a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Issuerparty.
(cb) The Successor Issuer will succeed to, Notwithstanding clauses (3) and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but in the case 4) of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture or the Notes or, if applicable, any Intercreditor Agreement.Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate with or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Issuer, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any in a State of the United States or States, the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the its Restricted Subsidiaries is not increased thereby.
(ec) The foregoing provisions (other than Subject to Section 11.06 hereof, no Guarantor shall, and the requirements of Section 5.01(a)(ii)) will Issuer shall not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No permit any Guarantor may:
(i) to, consolidate with or merge with or into any Person;
or wind up into (ii) sell, convey, transfer whether or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is not the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person surviving corporation), or (y) the resultingsell, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee andassign, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the saletransfer, lease, conveyance, assignment, transfer, convey or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of a Guarantorrelated transactions, which properties and assets, if held by to any Person unless:
(1) (A) such Guarantor instead of is the surviving corporation or the Person formed by or surviving any such Subsidiariesconsolidation, would constitute all wind-up or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of merger (if other than such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II)or to which such sale, (a) any Restricted Subsidiary may consolidate assignment, transfer, lease, conveyance or otherwise combine withother disposition shall have been made is a corporation, merge into partnership, limited partnership, limited liability corporation or transfer all trust organized or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor existing under the laws of any member state the jurisdiction of organization of such Guarantor, as the European Union case may be, or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such Guarantor or such Person, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of case may be, being herein called the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Person”);
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Samples: Indenture (EFIH Finance Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither the Issuer will not nor the Co-Issuer may consolidate with or merge with or intointo or wind up into (whether or not such Person is the surviving corporation), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
(i) the resultingIssuer or the Co-Issuer, as applicable, is the surviving Person or transferee the Person formed by or surviving any such consolidation or merger (if other than the “Successor Issuer or the Co-Issuer”) or the Person to whom such sale, assignment, transfer, lease, conveyance or other disposition will be have been made is a Person corporation, partnership (including a limited partnership), trust or limited liability company organized and or existing under the laws of any member state of the European Union or the United States of AmericaStates, any State of the United States state or commonwealth thereof, the District of Columbia, Canada Columbia or any province territory thereof (such Person, as the case may be, being herein called the “Successor Company”); provided, in the case of Canadathe Issuer, that if such Person is not a corporation, a co-obligor of the United KingdomNotes (which may be the Co-Issuer or another corporation) is a corporation organized or existing under such laws;
(ii) the Successor Company, Norway if other than the Issuer or Switzerland the Co-Issuer, expressly assumes all the obligations of the Issuer or the Co-Issuer, as applicable, under this Indenture and the Successor Issuer (if not the Issuer) will expressly assume (a) by Notes, as applicable, pursuant to a supplemental indenture, executed and delivered to the Trustee, indenture or other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iii) immediately after such transaction, no Default exists;
(iv) immediately after giving pro forma effect to such transactiontransaction and any related financing transactions (including the use of proceeds therefrom), either as if such transactions had occurred at the beginning of the applicable four-quarter period,
(aA) the Successor Issuer Company or the Issuer, as applicable, would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test Consolidated Leverage Ratio test set forth in Section 4.09(a), or ) hereof or
(bB) the Pro Rata Fixed Charge Coverage Consolidated Leverage Ratio for the Successor Company or the Issuer, as applicable, and its Restricted Subsidiaries would not be lower less than it was or equal to such ratio for the Issuer and its Restricted Subsidiaries immediately prior to giving effect to such transaction; and
(ivv) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with is permitted by this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a).
(b) 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.
(c) Indenture. The Successor Issuer Company will succeed to, and be substituted for, and may exercise every right and power ofthe Issuer or the Co-Issuer, as applicable, under this Indenture, the Issuer under this Indenture (Guarantees and the Notes, as applicable, and, if applicable, any Intercreditor Agreement), but except in the case of a lease of all or substantially all its assetslease, the predecessor company Issuer or the Co-Issuer, as applicable, will not automatically be released and discharged from its obligations under this Indenture or and the Notes or, if applicable, any Intercreditor Agreement.Notes. Notwithstanding clauses (iii) and (iv) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of (other than the Issuer Issuers) may consolidate or otherwise combine with, 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 Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii; and
(2) and Section 5.01(a)(iii), the Issuer or the Co-Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer solely for the purpose of changing the legal domicile of the Issuer, reincorporating reorganizing the Issuer under the laws of any member state of the European Union or the United States of America, any State Co-Issuer in a state or commonwealth of the United States or States, the District of Columbia, Canada Columbia or any province territory thereof of Canada, for the United Kingdom, Norway sole purpose of forming or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is collapsing a holding company structure in a manner not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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 prohibited by this Indenture.
(gb) For purposes of this Subject to Section 5.0110.06, no Guarantor will, and the saleIssuer 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, conveyance, assignment, transfer, convey or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of a Guarantorrelated transactions, which properties and assets, if held by to any Person unless:
(i) (A) such Guarantor instead of is the surviving Person or the Person formed by or surviving any such Subsidiaries, would constitute all consolidation or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of merger (if other than such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II)or to which such sale, (a) any Restricted Subsidiary may consolidate assignment, transfer, lease, conveyance or otherwise combine with, merge into other disposition will have been made is a Person organized or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor existing under the laws of any member state the jurisdiction of organization of such Guarantor, as the European Union case may be, or the United States of America, any State laws of the United States States, any state or commonwealth thereof, the District of Columbia, Canada Columbia or any province of Canadaterritory thereof (such Guarantor or such Person, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of case may be, being herein called the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Person”);
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Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will may not consolidate with or merge with or into or wind up into, consummate a Division as the Dividing Person (whether or not the Issuer is the surviving Person), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of (including, in each case, by way of Division) all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(i) the resultingIssuer is the surviving Person or the Person formed by or surviving any such consolidation, surviving amalgamation, merger, winding up or transferee Person Division (if other than the “Successor Issuer”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made, is a Person organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer, as the case may be, or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province 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 Canada, the United Kingdom, Norway or Switzerland and Notes is a corporation;
(ii) the Successor Issuer (Company, if not other than the Issuer) will , expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer under this Indenture and the Notes and this Indenture, and (b) pursuant to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer supplemental indentures or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer other documents or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuinginstruments;
(iii) immediately after giving effect to such transaction, either no Default exists;
(aiv) each Guarantor, unless it is the other party to the transactions described above (in which case clause (a)(ii) above 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
(v) 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, Division or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company shall succeed to, and be substituted for, the Issuer under this Indenture, the Guarantees and the Notes, as applicable, and the Issuer will automatically be released and discharged from its obligations under this Indenture, the Guarantees and the Notes.
(c) Notwithstanding clause (iii) of Section 5.01(a) hereof:
(i) any Restricted Subsidiary may consolidate or amalgamate with or merge with or into or wind up into, consummate a Division as the Dividing Person or transfer all or part of its properties and assets to the Issuer or a Subsidiary Guarantor; and
(ii) the Issuer may merge with an Affiliate of the Issuer, or consummate a Division as the Dividing Person with an Affiliate of the Issuer solely for the purpose of reorganizing or reincorporating the 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 Issuer and its Restricted Subsidiaries is not increased thereby.
(d) [Reserved].
(e) 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 or consummate a Division as the Dividing Person (whether or not such Subsidiary Guarantor 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 properties or assets, in one or more related transactions, to any Person unless:
(i) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation, merger or 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 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”);
(ii) the Successor Issuer would be able to incur at least €1.00 Person, if other than such Guarantor, expressly assumes all the obligations of additional Indebtedness such Guarantor under this Indenture and such Guarantor’s related Guarantee pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a), supplemental indentures or other documents or instruments;
(biii) the Pro Rata Fixed Charge Coverage Ratio would not be lower than it was immediately prior to giving effect to after such transaction, no Default exists; and
(iv) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger or transfer and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)Indenture.
(bf) For purposes of this Subject to Section 5.0110.06 hereof, 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, Successor Person shall be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer such Guarantor under this Indenture (and, if applicableand such Guarantor’s Guarantee. Notwithstanding the foregoing, any Intercreditor Agreement)Subsidiary Guarantor may (1) merge or consolidate with or into, but in wind up into or consummate a Division as the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture or the Notes or, if applicable, any Intercreditor Agreement.
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge into Dividing Person or transfer all or part of its properties and assets to another Subsidiary Guarantor or the Issuer, (2) merge or consummate a Division as the Dividing Person with an Affiliate of the Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized solely for the purpose of changing reorganizing the legal domicile Subsidiary Guarantor in the United States, any state thereof, the District of the IssuerColumbia or any territory thereof, reincorporating the Issuer (3) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of any member state the jurisdiction of the European Union organization of such Subsidiary Guarantor or the United States of America, any State of the United States (4) liquidate or the District of Columbia, Canada dissolve or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the change its legal form of if the Issuer so long as determines in good faith that such action is in the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary best interests of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) without regard to the other Person is requirements set forth in Section 5.01(e). Each of HWP and HLT Parent may merge with an Affiliate of the Issuer solely for the purpose of reincorporating or reorganizing HWP, HLT Parent or the Issuer, as the case may be, in the United States, any state thereof, the District of Columbia or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect territory thereof. Notwithstanding anything to the transaction, no Default has occurred and is continuing, or
(C) 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 (contrary in each case other than to the Issuer or a Restricted Subsidiary) otherwise permitted by this Indenture.
(g) For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, Issuer may contribute or other disposition transfer the Capital Stock of all any or substantially all of the properties and assets of one or more its Subsidiaries of a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such any Subsidiary Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
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Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither the Issuer will not nor the Parent Guarantor, as applicable, shall consolidate with or merge with into or into, transfer or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its assets toto (whether or not the Issuer or the Parent Guarantor, as applicable, is the surviving corporation), any Person, Person unless:
(1) either: (x) the Issuer or the Parent Guarantor, as applicable, is the surviving corporation; or (y)
(i) in the resultingcase of the Issuer, the Person formed by or surviving any such consolidation or transferee Person merger (if other than the “Successor Issuer”) or to which such transfer or lease, will be have been made is a Person corporation organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such Person, as the United Kingdomcase may be, Norway being herein called the “Successor Entity”) expressly assumes, pursuant to supplemental indentures or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Forty-Third Supplemental Indenture as if such Successor Entity were a party to this Forty-Third Supplemental Indenture, ; and (bii) to in the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations case of the Issuer Parent Guarantor, the Successor Entity assumes the Parent Guarantor’s obligations under any Intercreditor Agreement this Forty-Third Supplemental Indenture and the Guarantee, as applicableif such Successor Entity were an original party to this Forty-Third Supplemental Indenture and such Guarantee;
(ii2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default 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;
(iii3) immediately after giving effect if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer or the Parent Guarantor, as applicable, would become subject to such transactiona mortgage, either (a) the Successor Issuer would be able to incur at least €1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)pledge, lien, security interest or (b) the Pro Rata Fixed Charge Coverage Ratio other encumbrance that would not be lower than it was immediately permitted by this Forty-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 giving effect to such transactionto) all indebtedness secured thereby; and,
(iv4) the Issuer or the Parent Guarantor, as applicable, shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, conveyance, transfer or transfer lease and such supplemental indenture (indenture, if any) , comply with this Indenture Section 5.01 and an Opinion of Counsel that all conditions precedent provided for relating to the effect that such supplemental indenture (if any) has transaction have been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)complied with.
(b) 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.
(c) The Successor Issuer will Entity shall succeed to, and be substituted for, and may exercise every right and power of, for the Issuer or the Parent Guarantor, as applicable, as the case may be, under this Forty-Third Supplemental Indenture (and, if applicable, any Intercreditor Agreement), but in and the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture Notes or the Notes orGuarantee, if each as applicable, any Intercreditor Agreement.. Notwithstanding clause (3) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate with or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Issuer, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer, as the case may be, solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any in a State of the United States or any state thereof, the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the Restricted its Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will and the Co-Issuer each may not consolidate with or merge with or intointo or wind up into (whether or not the Issuer is the surviving corporation), or sell, assign, transfer, lease, convey, transfer, lease consummate a Division as the Dividing Person or otherwise dispose of all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(i1) (a) in the 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 resultingDivision, 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 transferee the Person formed by or surviving any such consolidation, merger, Division or wind-up (if other than the “Successor Issuer”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made is a Person organized and 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 Union, Switzerland, or the United States of AmericaKingdom (such Person, any State of as the United States case may be, being herein called the “Successor Company”);
(2) the Successor Company, if other than the Issuer or the District of ColumbiaCo-Issuer, Canada or any province of Canadaas applicable, the United Kingdom, Norway or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer or the Co-Issuer, as applicable, under this Indenture and the Notes and this Indenture, and (b) pursuant to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicablesupplemental indentures or other documents or instruments;
(ii3) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuingexists;
(iii4) only in the case of the Issuer, immediately after giving pro forma effect to such transactiontransaction and any related financing or debt reduction transactions, either as if such transactions had occurred at the beginning of the applicable four-quarter period,
(aA) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)) hereof, or or
(bB) the Pro Rata Fixed Charge Coverage Ratio for the Successor Company and the Restricted Subsidiaries would not be lower equal to or greater than it was the Fixed Charge Coverage Ratio for the Issuer and the Restricted Subsidiaries immediately prior to giving effect 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 transactionPerson’s obligations under this Indenture and the Notes;
(6) the Successor 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
(iv7) the Issuer Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, wind up, sale, assignment, transfer, lease, conveyance or transfer other disposition and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion Indenture; provided that the Trustee shall be under no obligation to inform Holders of Counsel to the effect that occurrence of any such supplemental indenture (if any) has been duly authorizedconsolidation, executed and delivered and is a legalmerger, valid and binding agreement enforceable against the Successor Issuer; providedwind-up, that in giving an Opinion of Counselsale, counsel may rely on an Officer’s Certificate as to any matters of factassignment, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)transfer, lease, conveyance or other disposition.
(b) For purposes of this Section 5.01The Successor Company, if not the sale, lease, conveyance, assignment, transfer, Issuer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Co-Issuer, which properties and assetsas applicable, 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.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer or the Co-Issuer, as applicable, under this Indenture (andand the Notes and in such event the Issuer or the Co-Issuer, if as applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assets, the predecessor company will not automatically be released and discharged from its obligations under this Indenture or and the Notes or, if applicable, any Intercreditor Agreement.Notes. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge with or into or wind up into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Subsidiary Guarantor, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer or the Co-Issuer, as applicable, may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized thereof solely for the purpose of changing reorganizing the legal domicile 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), reincorporating the Issuer under the laws of or in any member state of the European Union Union, Switzerland, or the United States of AmericaKingdom (in either case), any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the its Restricted Subsidiaries is not materially increased thereby.
(ec) The foregoing provisions (other than Subject to Section 10.06 hereof, no Subsidiary Guarantor will, and the requirements of Section 5.01(a)(ii)) Issuer will not apply to the creation of a new subsidiary as a Restricted permit any Subsidiary of the Issuer.
(f) No Guarantor may:
(i) to, consolidate with or merge with or into any or wind up into (whether or not such Subsidiary Guarantor is the surviving Person;
(ii) ), or sell, assign, transfer, lease, convey, transfer or dispose of, all or substantially all its assets consummate a Division as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any the Dividing Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of a Guarantorrelated transactions, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.any Person unless:
(h1) Notwithstanding (A) such Subsidiary Guarantor is the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor surviving Person or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II)Person formed by or surviving any such consolidation, merger, Division, or 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 Guarantor may consolidate Person organized or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor 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, any member state of the European Union Union, Switzerland, or the United States of America, any State of Kingdom (such Person being herein called the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Person”);
Appears in 1 contract
Samples: Indenture (Organon & Co.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Neither the Issuer will not nor the Parent Guarantor, as applicable, shall consolidate with or merge with or into, into or sell, assign, convey, transfer, transfer or lease or otherwise dispose of all or substantially all of its assets toto (whether or not the Issuer or the Parent Guarantor, as applicable, is the surviving corporation), any Person, Person unless:
(1) either: (x) the Issuer or the Parent Guarantor, as applicable, is the surviving corporation; or (y)
(i) in the resultingcase of the Issuer, the Person formed by or surviving any such consolidation or transferee Person merger (if other than the “Successor Issuer”) or to which such sale or lease, will be have been made is a Person corporation organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the United States of America, any State laws of the United States or States, any state thereof, the District of Columbia, Canada or any province of Canadaterritory thereof (such Person, as the United Kingdomcase may be, Norway being herein called the “Successor Entity”) expressly assumes, pursuant to supplemental indentures or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this First Supplemental Indenture as if such Successor Entity were a party to this First Supplemental Indenture, ; and (bii) to in the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations case of the Issuer Parent Guarantor, the Successor Entity assumes the Parent Guarantor’s obligations under any Intercreditor Agreement this First Supplemental Indenture and the Guarantee, as applicableif such Successor Entity were an original party to this First Supplemental Indenture and such Guarantee;
(ii2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default 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;
(iii3) immediately after giving effect if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer or the Parent Guarantor, as applicable, would become subject to such transactiona mortgage, either (a) the Successor Issuer would be able to incur at least €1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)pledge, lien, security interest or (b) the Pro Rata Fixed Charge Coverage Ratio other encumbrance that would not be lower than it was immediately permitted by this First 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 giving effect to such transactionto) all indebtedness secured thereby; and,
(iv4) the Issuer or the Parent Guarantor, as applicable, shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger or transfer and such supplemental indenture (indenture, if any) , comply with this First Supplemental Indenture and an Opinion of Counsel to the effect that such and, if a supplemental indenture (if any) has been duly authorizedis required in connection with such transaction, executed and delivered and is a legal, valid and binding agreement enforceable against such supplement shall comply with the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) applicable provisions of this Section 5.01(a)First Supplemental Indenture.
(b) 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.
(c) The Successor Issuer will Entity shall succeed to, and be substituted for, and may exercise every right and power of, for the Issuer or the Parent Guarantor, as applicable, as the case may be, under this First Supplemental Indenture (and, if applicable, any Intercreditor Agreement), but in and the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture Notes or the Notes orGuarantee, if each as applicable, any Intercreditor Agreement.. Notwithstanding clause (3) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate with or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Issuer, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized of the Issuer, as the case may be, solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any in a State of the United States or any state thereof, the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the Restricted its Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will not Borrower shall not, in a single transaction or through a series of related transactions, consolidate with or merge with or into, into any other Person (other than any Wholly Owned Subsidiary) or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets to, to any Person, unlessPerson (other than any Wholly Owned Subsidiary) or group of affiliated Persons unless at the time and after giving effect thereto:
(a) either (i) the resultingBorrower shall be the continuing corporation, surviving or transferee (ii) the Person (if other than the “Successor Issuer”Borrower) will formed by such consolidation or into which the Borrower is merged or the Person which acquires by conveyance, transfer, lease or disposition the properties and assets of the Borrower substantially as an entirety (the "Surviving Entity") shall be a Person corporation duly organized and validly existing under the laws of any member state of the European Union or the United States of America, any State of the United States state thereof or the District of ColumbiaColumbia and shall, Canada or any province of Canadain either case, the United Kingdom, Norway or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations Obligations of the Issuer Borrower under the Notes Loans and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicableAgreement;
(iib) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as on a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction)pro forma basis, no Default or Event of Default shall have occurred and be continuing;; and
(iiic) immediately after giving effect to such transactiontransaction on a pro forma basis, either except in the case of the consolidation or merger of any Subsidiary with or into the Borrower, the Borrower (aor the Surviving Entity if the Borrower is not the continuing corporation) the Successor Issuer would be able to could incur at least €$1.00 of additional Indebtedness pursuant to (other than Permitted Indebtedness) under the Pro Rata Fixed Charge Coverage Test set forth in provisions of Section 4.09(a), 5.1 (Indebtedness) . Upon any consolidation or (b) the Pro Rata Fixed Charge Coverage Ratio would not be lower than it was immediately prior to giving effect to such transaction; and
(iv) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a).
(b) 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.
(c) The Successor Issuer will Borrower in accordance with the foregoing, the successor corporation formed by such a consolidation or into which the Borrower is merged or to which such transfer is made shall succeed to, and shall be substituted for, for and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture or the Notes or, if applicable, any Intercreditor Agreement.
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer Borrower under the laws Loans and this Agreement, with the same effect as if such successor corporation had been named as the Borrower therein. In the event of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
(e) The foregoing provisions transaction (other than a lease) described and listed in the requirements of Section 5.01(a)(ii)) will immediately preceding paragraphs in which the Borrower is not apply to the creation of a new subsidiary as a Restricted Subsidiary continuing corporation, the successor Person formed or remaining shall succeed to, be substituted for and may exercise every right and power of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sellBorrower, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) and the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, Borrower shall be deemed to be the transfer of discharged from all or substantially all of the properties obligations and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor covenants under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer Loans and the Restricted Subsidiaries is not increased therebythis Agreement.
Appears in 1 contract
Samples: Credit Agreement (Amc Entertainment Holdings, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The On and following the Effective Date, the Issuer will and the Co-Issuer each may not consolidate with or merge with or intointo or wind up into (whether or not the Issuer is the surviving corporation), or sell, assign, transfer, lease, convey, transfer, lease consummate a Division as the Dividing Person or otherwise dispose of all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(i1) (a) in the 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 resultingDivision, 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 transferee the Person formed by or surviving any such consolidation, merger, Division or wind-up (if other than the “Successor Issuer”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made is a Person organized and 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 Union, Switzerland, or the United States of AmericaKingdom (such Person, any State of as the United States case may be, being herein called the “Successor Company”);
(2) the Successor Company, if other than the Issuer or the District of ColumbiaCo-Issuer, Canada or any province of Canadaas applicable, the United Kingdom, Norway or Switzerland and the Successor Issuer (if not the Issuer) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer or the Co-Issuer, as applicable, under this Indenture and the Notes and this Indenture, and (b) pursuant to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicablesupplemental indentures or other documents or instruments;
(ii3) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuingexists;
(iii4) only in the case of the Issuer, immediately after giving pro forma effect to such transactiontransaction and any related financing or debt reduction transactions, either as if such transactions had occurred at the beginning of the applicable four-quarter period,
(aA) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a)) hereof, or or
(bB) the Pro Rata Fixed Charge Coverage Ratio for the Successor Company and the Restricted Subsidiaries would not be lower equal to or greater than it was the Fixed Charge Coverage Ratio for the Issuer and the Restricted Subsidiaries immediately prior to giving effect 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 transactionPerson’s obligations under this Indenture and the Notes; and
(iv6) the Issuer Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, wind up, sale, assignment, transfer, lease, conveyance or transfer other disposition and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion Indenture; provided that the Trustee shall be under no obligation to inform Holders of Counsel to the effect that occurrence of any such supplemental indenture (if any) has been duly authorizedconsolidation, executed and delivered and is a legalmerger, valid and binding agreement enforceable against the Successor Issuer; providedwind-up, that in giving an Opinion of Counselsale, counsel may rely on an Officer’s Certificate as to any matters of factassignment, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)transfer, lease, conveyance or other disposition.
(b) For purposes of this Section 5.01The Successor Company, if not the sale, lease, conveyance, assignment, transfer, Issuer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Co-Issuer, which properties and assetsas applicable, 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.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer or the Co-Issuer, as applicable, under this Indenture (andand the Notes and in such event the Issuer or the Co-Issuer, if as applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assets, the predecessor company will not automatically be released and discharged from its obligations under this Indenture or and the Notes or, if applicable, any Intercreditor Agreement.Notes. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge with or into or wind up into or transfer all or part of its properties and assets to the Issuer or any Guarantor and Subsidiary Guarantor, and
(ii2) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer or the Co-Issuer, as applicable, may consolidate or otherwise combine merge with or merge into an Affiliate incorporated or organized thereof solely for the purpose of changing reorganizing the legal domicile 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), reincorporating the Issuer under the laws of or in any member state of the European Union Union, Switzerland, or the United States of AmericaKingdom (in either case), any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the its Restricted Subsidiaries is not materially increased thereby.
(ec) The foregoing provisions (other than Subject to Section 10.06 hereof, on and following the requirements of Section 5.01(a)(ii)) Effective Date, no Subsidiary Guarantor will, and the Issuer will not apply to the creation of a new subsidiary as a Restricted permit any Subsidiary of the Issuer.
(f) No Guarantor may:
(i) to, consolidate with or merge with or into any or wind up into (whether or not such Subsidiary Guarantor is the surviving Person;
(ii) ), or sell, assign, transfer, lease, convey, transfer or dispose of, all or substantially all its assets consummate a Division as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any the Dividing Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of a Guarantorrelated transactions, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.any Person unless:
(h1) Notwithstanding (A) such Subsidiary Guarantor is the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor surviving Person or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II)Person formed by or surviving any such consolidation, merger, Division, or 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 Guarantor may consolidate Person organized or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor 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, any member state of the European Union Union, Switzerland, or the United States of America, any State of Kingdom (such Person being herein called the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Person”);
Appears in 1 contract
Samples: Indenture (Organon & Co.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will Company Borrower shall not consolidate with or merge with or intointo or wind up into (whether or not the Company Borrower is the surviving corporation), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
: (ia) the resultingCompany Borrower is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company Borrower) or to which such sale, surviving assignment, transfer, lease, conveyance or transferee Person (the “Successor Issuer”) other disposition will be have been made is a Person corporation, partnership or limited liability company organized and or existing under the laws of any member state of the European Union or the United States of AmericaStates, any State of the United States or state thereof, the District of Columbia, Canada or any province territory thereof (the Company Borrower or such Person, as the case may be, being herein called the “Successor Company”) and, if such entity is not a corporation, a co- obligor of Canada, the United Kingdom, Norway Obligations is a corporation organized or Switzerland and existing under such laws; (b) the Successor Issuer Company (if not other than the IssuerCompany Borrower) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer Company Borrower under this Agreement and the Notes and this Indenture, and other Loan Documents to which it is a party; (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(iic) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer Company or any Subsidiary of the Successor Issuer its Restricted Subsidiaries as a result of such transaction as having been incurred Incurred by the Successor Issuer Company or such Restricted Subsidiary at the time of such transaction), ) no Default or Event of Default shall have occurred and be continuing;
; (iiid) immediately after giving pro forma effect to such transaction, either as if such transaction had occurred at the beginning of the applicable four-quarter period, either: (ai) the Successor Issuer Company would be able permitted to incur Incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test Ratio test set forth in Section 4.09(a), or (b) the Pro Rata Fixed Charge Coverage Ratio would not be lower than it was immediately prior to giving effect to such transaction; and
(iv) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a).
(b) 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.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture or the Notes or, if applicable, any Intercreditor Agreement.
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction6.1(a); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.-133-
Appears in 1 contract
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will Issuers shall not consolidate with or merge with or intointo or wind up into (whether or not the Issuer or the Co-Issuer, as applicable, is the surviving corporation), or sell, assign, convey, transfer, lease convey or otherwise dispose of all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(i1) the resultingIssuer or the Co-Issuer, as applicable, is the surviving corporation or transferee the Person formed by or surviving any such consolidation or merger (if other than the “Successor Issuer or the Co-Issuer”, as applicable) or to which such sale, assignment, transfer, conveyance or other disposition will be have been made is a Person corporation organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the United States of AmericaCo-Issuer, any State as applicable, or the laws of the United States or States, any state thereof, the District of Columbia, Canada Columbia or any province of Canadaterritory thereof (the Issuer or the Co-Issuer, as applicable, or such Person, as the United Kingdomcase may be, Norway or Switzerland and being herein called the “Successor Company”);
(2) the Successor Company, if other than the Issuer (if not or the Co-Issuer) will , as applicable, expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer or the Co-Issuer, as applicable, under the Notes and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of this Indenture and the Issuer under any Intercreditor Registration Rights Agreement as applicablepursuant to supplemental indentures and/or other documents or instruments;
(ii3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation related financing transactions, as if such transactions had occurred at the beginning of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;applicable four-quarter period,
(iii) immediately after giving effect to such transaction, either (a) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test Consolidated Leverage Ratio test set forth in Section 4.09(a)) hereof, or or
(b) the Pro Rata Fixed Charge Coverage Consolidated Leverage Ratio for the Successor Company and its Restricted Subsidiaries would not be lower less than it was the Consolidated Leverage Ratio for the Issuer and its Restricted Subsidiaries immediately prior to giving effect to such transaction; and
(iv) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a).
(b) 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.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (and, if applicable, any Intercreditor Agreement), but in the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Indenture or the Notes or, if applicable, any Intercreditor Agreement.
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
(e) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) consolidate with or merge with or into any Person;
(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
Appears in 1 contract
Samples: Indenture (Stargazer Productions)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will may not consolidate with or merge with or into or wind up into, consummate a Division as the Dividing Person (whether or not the Issuer is the surviving Person), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of (including, in each case, by way of Division) all or substantially all of its assets toproperties or assets, in one or more related transactions, to any Person, Person unless:
(i) the resultingIssuer is the surviving Person or the Person formed by or surviving any such consolidation, surviving amalgamation, merger, winding up or transferee Person Division (if other than the “Successor Issuer”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made, is a Person organized and or existing under the laws of any member state the jurisdiction of organization of the European Union Issuer or the laws of the United States of America, any State of the United States state thereof, or the District of Columbia, Canada Columbia or any province 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 Canada, the United Kingdom, Norway or Switzerland and Notes is a corporation;
(ii) the Successor Issuer (Company, if not other than the Issuer) will , expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, assumes all the obligations of the Issuer under the Notes and this Indenture, and (b) pursuant to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer supplemental indentures or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer other documents or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuinginstruments;
(iii) immediately after such transaction, no Default exists;
(iv) immediately after giving pro forma effect to such transactiontransaction and any related financing transactions, either as if such transactions had occurred at the beginning of the applicable four-quarter period:
(aA) the Successor Issuer Company would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a), or Test; or
(bB) the Pro Rata Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would not be lower equal to or greater than it was the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries immediately prior to giving effect such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, in which case clause (i)(B) of Section 5.01(e) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such transactionPerson’s obligations under this Indenture and the Notes;
(vi) if the Successor Company is not a corporation, 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
(ivvii) the Issuer or, if applicable, the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger merger, Division or transfer and such supplemental indenture (indentures, if any) , comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a)Indenture.
(b) 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.
(c) The Successor Issuer will Company shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (andIndenture, if the Guarantees and the Notes, as applicable, any Intercreditor Agreement), but in and the case of a lease of all or substantially all its assets, the predecessor company will not Issuer shall automatically be released and discharged from its obligations under this Indenture or Indenture, the Notes or, if applicable, any Intercreditor AgreementGuarantees and the Notes.
(dc) Notwithstanding Section 5.01(a)(iiclauses (iii) and (iv) of Section 5.01(a)(iii), 5.01(a) hereof:
(i) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine with, amalgamate with or merge with or into or wind up into or consummate a Division as the Dividing Person or transfer all or part of its properties and assets to the Issuer or any Guarantor and a Guarantor; and
(ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with amalgamate or merge with, wind-up into or consummate a Division as a Dividing Person, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets to an Affiliate incorporated of the Issuer or organized consummate a Division as the Dividing Person with an Affiliate of the Issuer solely for the purpose of changing the legal domicile of the Issuer, reincorporating reorganizing the Issuer under the laws of any member state of the European Union or in the United States of America, any State of the United States state thereof, or the District of Columbia, Canada Columbia or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer territory thereof so long as the amount of Indebtedness of the Issuer and the its Restricted Subsidiaries is not increased thereby.
(ed) The foregoing provisions (other than the requirements of Section 5.01(a)(ii)) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor may:
(i) Co-Issuer may not, directly or indirectly, consolidate with or merge with or into any Person;
or wind up into, consummate a Division as the Dividing Person (ii) whether or not the Co-Issuer is the surviving corporation), or sell, conveyassign, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the saletransfer, lease, conveyance, assignment, transfer, convey or other disposition otherwise dispose of all or substantially all of the Co-Issuer’s properties and assets of or assets, in one or more Subsidiaries of related transactions, to any Person, unless:
(i) (A) concurrently therewith, a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiaries, would constitute all or substantially all corporate Wholly-Owned Subsidiary that is a Restricted Subsidiary of the properties Issuer organized and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor validly existing under the laws of any member state of the European Union or the United States of America, any State of the United States or state thereof, the District of Columbia, Canada Columbia or any province territory thereof (which may be the continuing Person as a result of Canada, such transaction) expressly assumes all the United Kingdom, Norway or Switzerland, or changing the legal form obligations of the Guarantor so long as Co-Issuer under the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.Notes pursuant to supplemental indentures or other documents or instruments; or
Appears in 1 contract
Samples: Indenture (Summit Materials, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Issuer will Company shall not consolidate with or merge with or intointo or wind up into (whether or not the Company is the surviving entity), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all of its assets in one or more related transactions to, any PersonPerson (other than any such consolidation, merger, sale, assignment, transfer, lease, conveyance or disposition in connection with the Transactions described in the Offering Circular) unless:
(i) the resultingCompany is the surviving entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, surviving assignment, transfer, lease, conveyance or transferee Person 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, 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 IssuerCompany”); provided, however, that if such Successor Company is not a corporation, such Successor Company will form a Wholly Owned Subsidiary that is a corporation and cause such Wholly Owned Subsidiary to become a co-issuer of the Notes;
(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 supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction no 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 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 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 the Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(v) 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 indentures (if any) comply with this Indenture. The Successor Company (if other than the Company) shall succeed to, and be substituted for, the Company under this Indenture, and the predecessor Company, except in the case of a lease of all or substantially all assets, will be released from all obligations with respect to this Indenture and 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 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) The Company 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 entity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its assets in one or more related transactions to, any Person (other than any such consolidation, merger, sale, assignment, transfer, lease, conveyance or disposition in connection with the Transactions described in the Offering Circular) unless:
(i) except in the case of a Subsidiary Guarantor (x) that has been disposed of in its entirety to another Person (other than to the Company, Holdings or a Subsidiary of the Company or Holdings), whether through a merger, consolidation or sale of Capital Stock or assets or (y) that, as a result of the disposition of all or a portion of its Capital Stock, ceases to be a Subsidiary, in both cases, if in connection therewith the Company provides an Officers’ Certificate to the Trustee to the effect that the Company will comply with its obligations under Section 4.06 in respect of such disposition, such Subsidiary Guarantor is the surviving entity 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 existing under the laws of any member state of the European Union or the United States of AmericaStates, any State of the United States or state thereof, the District of Columbia, Canada or any province territory thereof (such Subsidiary Guarantor or such Person, as the case may be, except in the case of Canadaclause (x) or (y), being herein called the United Kingdom, Norway or Switzerland and “Successor Guarantor”);
(ii) the Successor Issuer Guarantor (if not the Issuerother than such Guarantor) will expressly assume (a) by supplemental indenture, executed and delivered to the Trustee, extent applicable) 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 Trustee, all the obligations of the Issuer under the Notes and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(iiiii) immediately after giving effect to such transaction (and treating any Indebtedness that which becomes an obligation of the Successor Issuer Guarantor (to the extent applicable) or any Subsidiary of the Successor Issuer its Subsidiaries as a result of such transaction as having been incurred Incurred by the Successor Issuer Guarantor (to the extent applicable) or such Subsidiary at the time of such transaction), ) no Default or Event of Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, either (a) the Successor Issuer would be able to incur at least €1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test set forth in Section 4.09(a), or (b) the Pro Rata Fixed Charge Coverage Ratio would not be lower than it was immediately prior to giving effect to such transaction; and
(iv) the Issuer Successor Guarantor (if other than such Subsidiary Guarantor) (to the extent applicable) shall have delivered or caused to be delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture and an Opinion of Counsel Indenture. The Successor Guarantor (to the effect that such supplemental indenture (if anyextent applicable) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a).
(b) 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.
(c) The Successor Issuer will succeed to, and be substituted for, and may exercise every right and power of, the Issuer such Guarantor under this Indenture (andand such Guarantor’s Guarantee, if applicableand the predecessor Subsidiary Guarantor, any Intercreditor Agreement), but except in the case of a lease of all or substantially all its assets, the predecessor company will not be released from all obligations with respect to its obligations under Guarantee, this Indenture or and the Notes or, if applicable, any Intercreditor Agreement.
Notes. Notwithstanding the foregoing clause (d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iiiiii), (iA) any Restricted Subsidiary of the Issuer a Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under the laws of any member such Guarantor in another state of the European Union or the United States of AmericaStates, any State of the United States or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries Guarantor is not increased therebythereby and (B) a Guarantor may merge with another Guarantor or the Company.
(ec) The foregoing provisions Holdings shall not consolidate or merge with or into or wind up into (whether or not Holdings is the surviving entity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its assets in one or more related transactions to, any Person (other than any such consolidation, merger, sale, assignment, transfer, lease, conveyance or disposition in connection with the requirements of Section 5.01(a)(ii)Transactions described in the Offering Circular) will not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No Guarantor mayunless:
(i) consolidate with Holdings is the surviving entity or merge with the Person formed by or into 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, 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 Holdings Guarantor”);
(ii) sell, convey, transfer the Successor Holdings Guarantor (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture and Holdings’ Guarantee of the Notes pursuant to a supplemental indenture or dispose of, all other documents or substantially all its assets as an entirety or substantially as an entirety, instruments in one transaction or a series of related transactions, form reasonably satisfactory to any Person; orthe Trustee;
(iii) permit any Person to merge with or into such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee and, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, such transaction no Default has shall have occurred and is be continuing, or; and
(Civ) the transaction constitutes a sale Successor Holdings Guarantor (if other than Holdings) shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or other disposition transfer and such supplemental indenture (including by way of consolidation or mergerif any) comply with this Indenture. The Successor Holdings Guarantor shall succeed to, and be substituted for, Holdings under this Indenture and such Holdings’ Guarantee of the Guarantor or Notes and the sale or disposition predecessor Holdings, except in the case of a lease 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.
(g) 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 a Guarantor, which properties and assets, if held by such Guarantor instead of such Subsidiarieswill be released from all obligations with respect to its Guarantee, would constitute all or substantially all of this Indenture and the properties and assets of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(h) Notes. Notwithstanding the preceding Section 5.01(f)(iii)(B)(IIforegoing clauses (iii), (aA) any Restricted Subsidiary Holdings may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized solely for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of any member Holdings in another state of the European Union or the United States of America, any State of the United States and (B) Holdings may merge with another Guarantor or the District of Columbia, Canada or any province of Canada, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased therebyCompany.
Appears in 1 contract
Samples: Indenture (Metals USA Plates & Shapes Southcentral, Inc.)
Merger, Consolidation or Sale of All or Substantially All Assets. (a) The Prior to the Release Date, the Issuer will shall not consolidate consolidate, merge or amalgamate with or merge with into or intowind up into (whether or not the Issuer is the surviving Person), or sell, assign, convey, transfer, lease lease, convey or otherwise dispose of all or substantially all its of the properties or assets toof the Issuer and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person, except (i) to the extent necessary to consummate the Transactions and (ii) for liquidations necessary to consummate the Special Mandatory Redemption.
(b) From and after the Release Date, except in connection with the Transactions, the Issuer shall not consolidate, merge or amalgamate with or into or wind up into (whether or not the Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of 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:
(i1) the resultingIssuer is the surviving Person or the Person formed by or surviving any such consolidation, surviving amalgamation or transferee Person merger (if other than the “Successor Issuer”) or to which such sale, assignment, transfer, lease, conveyance or other disposition will be have been made is a Person organized and or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, the Netherlands, the United Kingdom, any member state of the European Union or the United States of America, any State of the United States or the District of ColumbiaUnion, Canada or any state, territory, province or possession thereof (such Person, as the case may be, being herein called the “Successor Company”); provided that in the case where the Successor Company is not a corporation, a co-obligor of Canadathe Notes shall be a corporation;
(2) the Successor Company, if other than the United KingdomIssuer, Norway or Switzerland expressly assumes all the obligations of the Issuer under this Indenture and the Successor Issuer (if not the Issuer) will expressly assume (a) by Notes pursuant to supplemental indenture, executed and delivered to the Trustee, indentures or other documents or instruments in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Indenture, and (b) to the extent any Intercreditor Agreement has been entered into with respect to the Notes, all obligations of the Issuer under any Intercreditor Agreement as applicable;
(ii3) immediately after such transaction, no Default exists;
(4) immediately after giving pro forma effect to such transaction (and treating any Indebtedness that becomes an obligation related financing transactions, as if such transactions had occurred at the beginning of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;applicable four-quarter period,
(iii) immediately after giving effect to such transaction, either (aA) the Successor Company or the Issuer would be able permitted to incur at least €$1.00 of additional Indebtedness pursuant to the Pro Rata Fixed Charge Coverage Test Ratio test set forth in Section 4.09(a4.09(b), or or
(bB) the Pro Rata Fixed Charge Coverage Ratio for the Issuer (or the Successor Company, as applicable) and the Restricted Subsidiaries on a consolidated basis would not be lower equal to or greater than it was the Fixed Charge Coverage Ratio for the Issuer and the Restricted Subsidiaries on a consolidated basis immediately prior to giving effect such transaction;
(5) each Guarantor, unless it is the other party to the transactions described above, in which case clause (1)(B) of Section 5.01(d) shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such transactionPerson’s obligations under this Indenture and the Notes; and
(iv6) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect stating that such consolidation, amalgamation, merger or transfer and such supplemental indenture (indentures or other documents and instruments, if any) , comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Issuer; provided, that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clauses (i) through (iii) of this Section 5.01(a).
(b) 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 IssuerIndenture.
(c) The Successor Issuer will Company shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture (andand the Notes, if applicable, any Intercreditor Agreement), but in and the case of a lease of all or substantially all its assets, the predecessor company will not Issuer shall automatically be released and discharged from its obligations under this Indenture or and the Notes or, if applicable, any Intercreditor Agreement.Notes. Notwithstanding clauses (3) and (4) of Section 5.01(b),
(d) Notwithstanding Section 5.01(a)(ii) and Section 5.01(a)(iii), (i1) any Restricted Subsidiary of the Issuer may consolidate or otherwise combine amalgamate with, merge into or transfer sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Issuer or any Guarantor and (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary. Notwithstanding Section 5.01(a)(ii; and
(2) and Section 5.01(a)(iii), the Issuer may consolidate or otherwise combine with consolidate, amalgamate or merge into with an Affiliate incorporated or organized of the Issuer solely for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer under in any state in the laws United States, the District of Columbia or any territory thereof, the Netherlands, the United Kingdom, any member state of the European Union or the United States of America, any State of the United States or the District of Columbia, Canada or any state, territory, province of Canadaor possession thereof, the United Kingdom, Norway or Switzerland, or changing the legal form of the Issuer so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
(ed) The foregoing provisions (other than Subject to Section 10.06, no Guarantor shall, and the requirements of Section 5.01(a)(ii)) will Issuer shall not apply to the creation of a new subsidiary as a Restricted Subsidiary of the Issuer.
(f) No permit any such Guarantor may:
(i) consolidate with to, consolidate, amalgamate or merge with or into any Person;
or wind up into (ii) sell, convey, transfer whether or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into not such Guarantor, in each case, unless:
(A) the other Person is the Issuer or any Restricted Subsidiary that is a Guarantor (or becomes a Guarantor concurrently with the transaction); or
(I) either (x) a Guarantor is the continuing Person surviving Person), or (y) the resultingsell, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Guarantee andassign, if applicable, any Intercreditor Agreement; and
(II) immediately after giving effect to the transaction, no Default has occurred and is continuing, or
(C) 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.
(g) For purposes of this Section 5.01, the saletransfer, lease, conveyance, assignment, transfer, convey or other disposition otherwise dispose of all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries of a Guarantorrelated transactions, which properties and assets, if held by to any Person unless:
(1) (A) such Guarantor instead of is the surviving Person or the Person formed by or surviving any such Subsidiariesconsolidation, would constitute all amalgamation or substantially all 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, formed or existing under (i) the laws of the properties and assets jurisdiction of organization of such Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Guarantor.
(hii) Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), (a) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor and (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Guarantor or the Issuer. Notwithstanding the preceding Section 5.01(f)(iii)(B)(II), a Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor reincorporating the Guarantor under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, the Netherlands, the United Kingdom, any member state of the European Union or the United States of AmericaUnion, any State of the United States or the District of ColumbiaCanada, Canada Puerto Rico, Cayman Islands, Austria or any state, territory, province of Canadaor possession thereof (such Guarantor or such Person, the United Kingdom, Norway or Switzerland, or changing the legal form of the Guarantor so long as the amount of Indebtedness of case may be, being herein called the Issuer and the Restricted Subsidiaries is not increased thereby.“Successor Guarantor”);
Appears in 1 contract
