Merger, Consolidation, Sale of Assets. The Borrower shall not, and shall not permit any Subsidiary, to: (a) Sell, lease, transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its properties and assets to any Person; (b) Consolidate with or merge into any other Person (other than a merger of a Subsidiary into, or a consolidation of a Subsidiary with, the Borrower), unless: (i) immediately before and after giving effect thereto, no Change in Control shall have occurred and no Default or Event of Default shall exist; (ii) immediately before and after giving effect thereto, all of the representations and warranties contained in the Loan Documents shall be true and correct except as the context thereof otherwise requires and except for those representations and warranties which by their terms or by necessary implication are expressly limited to a state of facts existing at a time prior to such merger, consolidation or acquisition, as the case may be, or such other matters relating thereto as are identified in a writing to the Administrative Agent and the Lenders and are satisfactory to the Administrative Agent and the Lenders; (iii) the Borrower shall be the surviving entity thereof or, in the event the Borrower shall not be the surviving entity thereof, each of the following conditions shall be satisfied: (1) such surviving entity shall be organized in a State of the United States with substantially all of its assets and businesses located and conducted in the United States and (2) the Administrative Agent shall have received (A) a certificate signed by a duly authorized officer of the Borrower, in form and substance satisfactory to the Administrative Agent, (x) attaching a true and complete copy of each agreement, instrument or other document effecting such merger, consolidation or acquisition, together with an agreement signed on behalf of such surviving entity pursuant to which such surviving entity shall have expressly assumed all of the indebtedness, liabilities and other obligations of the Borrower under and in accordance with the Loan Documents, and (y) certifying that such merger, consolidation or acquisition has been consummated in accordance with such agreements, instruments or other documents referred to in the immediately preceding clause (x), and (B) such documents, legal opinions and certificates as the Administrative Agent shall reasonably request relating to the organization, existence and, if applicable, good standing of such surviving entity, the authorization of such merger, consolidation or acquisition and any other legal matters relating to such surviving entity, the assumption agreement referred to in the immediately preceding clause (x) or such merger, consolidation or acquisition; and (iv) the Administrative Agent and the Lenders shall have received a certificate signed by a duly authorized officer of the Borrower identifying the Person to be merged with or into, consolidated with, or acquired by, the Borrower, and certifying as to each of the matters set forth in subclauses (i) through (iii) of this clause (b).
Appears in 2 contracts
Samples: Credit Agreement (Cleco Power LLC), Term Loan Agreement (Cleco Corp)
Merger, Consolidation, Sale of Assets. The Borrower shall not, and shall not permit any Subsidiary, to:
(a) Sell, leaseThe Company shall not ------------------------------------- consolidate with or merge with or into any other Person or convey, transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of lease its properties and assets substantially as an entirety to any Person;
(b) Consolidate with or merge into any other Person (other than a merger of a Subsidiary into, or a consolidation of a Subsidiary with, the Borrower), unless:
(i) immediately before either (1) the Company shall be the continuing corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by convey- ance,transfer or lease the properties and after giving effect theretoassets of the Company substantially as an entirety (i) shall be a corporation, no Change partnership or trust organized and validly existing under the laws of the United States or any state thereof or the District of Columbia and (ii) shall expressly assume, by an agreement supplement hereto, executed and delivered to you, in Control shall have occurred form satisfactory to you, the due and no Default punctual payment of the principal of and interest on all the Notes and the performance of every covenant of this Agreement on the part of the Company to be performed or Event of Default shall existobserved;
(ii) immediately before and after giving effect thereto, all to such transaction (and treating any Indebtedness which becomes an obligation of the representations and warranties contained Company or a Subsidiary in connection with or as a result of such transaction as having been incurred at the time of such transaction), the Company (in the Loan Documents case of clause (l) of subsection (i) above) or such Person (in the case of clause (2) thereof) shall be true and correct except as have a Consolidated Tangible Net Worth equal to or greater than the context thereof otherwise requires and except for those representations and warranties which by their terms or by necessary implication are expressly limited to a state Consolidated Tangible Net Worth of facts existing at a time the Company immediately prior to such merger, consolidation or acquisition, as the case may be, or such other matters relating thereto as are identified in a writing to the Administrative Agent and the Lenders and are satisfactory to the Administrative Agent and the Lenderstransaction;
(iii) the Borrower shall be the surviving entity thereof or, in the event the Borrower shall not be the surviving entity thereof, each immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the following conditions shall be satisfied: (1) Company or a Subsidiary in connection with or as a result of such surviving entity shall be organized in a State transaction as having been incurred at the time of the United States with substantially all such transaction), no Event of its assets Default, and businesses located and conducted in the United States and (2) the Administrative Agent no event which, after notice or lapse of time, or both, would become an Event of Default, shall have received (A) a certificate signed by a duly authorized officer of the Borrower, in form occurred and substance satisfactory to the Administrative Agent, (x) attaching a true and complete copy of each agreement, instrument or other document effecting such merger, consolidation or acquisition, together with an agreement signed on behalf of such surviving entity pursuant to which such surviving entity shall have expressly assumed all of the indebtedness, liabilities and other obligations of the Borrower under and in accordance with the Loan Documents, and (y) certifying that such merger, consolidation or acquisition has been consummated in accordance with such agreements, instruments or other documents referred to in the immediately preceding clause (x), and (B) such documents, legal opinions and certificates as the Administrative Agent shall reasonably request relating to the organization, existence and, if applicable, good standing of such surviving entity, the authorization of such merger, consolidation or acquisition and any other legal matters relating to such surviving entity, the assumption agreement referred to in the immediately preceding clause (x) or such merger, consolidation or acquisitionbe continuing; and
(iv) the Administrative Agent Company or such Person shall have delivered to you an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental agreement is required in connection with such transaction, such supplemental agreement, comply with this Section 9.2 and that all conditions precedent herein provided for relating to such transaction have been satisfied;
(b) upon any consolidation or merger, or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with this section 9.2, the successor Person formed by such consolidation or into which the Company is merged or the successor Person to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Agreement with the same effect as if such Successor had been named as the Company herein; and thereafter, except in the case of a lease, the Company shall be discharged from all obligations and covenants under this Agreement and the Lenders shall have received a certificate signed by a duly authorized officer of the Borrower identifying the Person to be merged with or into, consolidated with, or acquired by, the Borrower, and certifying as to each of the matters set forth in subclauses (i) through (iii) of this clause (b)Notes.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Information Management Associates Inc)
Merger, Consolidation, Sale of Assets. The Borrower shall not, Old Dominion covenants and shall not permit any Subsidiary, toagrees as follows:
(a) SellOld Dominion will not consolidate with or merge into any other Person, lease, or convey or transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its properties and assets to any Person;
(b) Consolidate with or merge into any other Person (other than a merger of a Subsidiary into, or a consolidation of a Subsidiary with, the Borrower), unlessunless immediately after giving effect to such transaction:
(i) immediately before the entity resulting from such consolidation, surviving in such merger or succeeding to such assets, if other than Old Dominion, shall be organized under the laws of the United States, any state thereof or the District of Columbia; and
(ii) such resulting, surviving or succeeding entity, if other than Old Dominion, shall execute and after giving effect theretodeliver to the Owner Trustee, the Owner Participant, the Agent and the Lenders an agreement in form and substance reasonably satisfactory to each of such parties containing an assumption by such entity of Old Dominion's obligations under this Participation Agreement and each other Operative Document to which Old Dominion is then a party; no Change in Control Event of Default shall have occurred and no Default be continuing under the Equipment Operating Lease or Event Foundation Operating Lease; and Old Dominion shall have delivered to the Owner Trustee, the Owner Participant, the Agent and the Lender an Officer's Certificate and an opinion of Default shall exist;counsel stating that such transaction and such assumption agreement comply with this Section 7.2 and that all conditions precedent to the consummation of such transaction set forth herein have been complied with.
(iib) Upon the consummation of such transaction, the surviving entity, if other than Old Dominion, shall succeed to, and be substituted for, and may exercise every right and power of, Old Dominion under this Participation Agreement and each other Operative Document to which Old Dominion was a party immediately before and after giving effect thereto, all of the representations and warranties contained in the Loan Documents shall be true and correct except as the context thereof otherwise requires and except for those representations and warranties which by their terms or by necessary implication are expressly limited to a state of facts existing at a time prior to such mergertransaction, consolidation with the same effect as if such entity had been named herein and therein. Nothing contained herein shall permit any sublease, assignment or acquisitionother arrangement for the use, operation or possession of the Equipment Interest or Foundation Interest except in compliance with the applicable provisions of the Equipment Operating Lease or Foundation Operating Lease, as the case may be, or such other matters relating thereto as are identified in a writing to the Administrative Agent and the Lenders and are satisfactory to the Administrative Agent and the Lenders;
(iii) the Borrower shall be the surviving entity thereof or, in the event the Borrower shall not be the surviving entity thereof, each of the following conditions shall be satisfied: (1) such surviving entity shall be organized in a State of the United States with substantially all of its assets and businesses located and conducted in the United States and (2) the Administrative Agent shall have received (A) a certificate signed by a duly authorized officer of the Borrower, in form and substance satisfactory to the Administrative Agent, (x) attaching a true and complete copy of each agreement, instrument or other document effecting such merger, consolidation or acquisition, together with an agreement signed on behalf of such surviving entity pursuant to which such surviving entity shall have expressly assumed all of the indebtedness, liabilities and other obligations of the Borrower under and in accordance with the Loan Documents, and (y) certifying that such merger, consolidation or acquisition has been consummated in accordance with such agreements, instruments or other documents referred to in the immediately preceding clause (x), and (B) such documents, legal opinions and certificates as the Administrative Agent shall reasonably request relating to the organization, existence and, if applicable, good standing of such surviving entity, the authorization of such merger, consolidation or acquisition and any other legal matters relating to such surviving entity, the assumption agreement referred to in the immediately preceding clause (x) or such merger, consolidation or acquisition; and
(iv) the Administrative Agent and the Lenders shall have received a certificate signed by a duly authorized officer of the Borrower identifying the Person to be merged with or into, consolidated with, or acquired by, the Borrower, and certifying as to each of the matters set forth in subclauses (i) through (iii) of this clause (b).
Appears in 1 contract
Samples: Participation Agreement (Old Dominion Electric Cooperative)
Merger, Consolidation, Sale of Assets. The Borrower shall not, Oglethorpe covenants and shall not permit any Subsidiary, toagrees as follows:
(a) SellOglethorpe will not consolidate with or merge into any other Person, leaseor sell, transfer or otherwise dispose of (in one transaction or in a series of transactions) of, all or substantially all of its properties and assets to any Person;
(b) Consolidate with Person or merge into any other Person (other than a merger of a Subsidiary into, Persons in one or a consolidation series of a Subsidiary withtransactions, the Borrower), unlessunless immediately after giving effect to such transaction:
(i) immediately before and after giving effect theretono Head Lessor Event of Default, no Change in Control Sublease Payment Default, Sublease Bankruptcy Default or Sublease Event of Default shall have occurred and no Default or Event of Default shall existbe continuing;
(ii) immediately before and after giving effect theretothe entity resulting from such consolidation, all surviving in such merger or succeeding to such assets, if other than Oglethorpe, shall be organized under the laws of the representations and warranties contained in United States, any state thereof or the Loan Documents shall be true and correct except as the context thereof otherwise requires and except for those representations and warranties which by their terms or by necessary implication are expressly limited to a state District of facts existing at a time prior to such merger, consolidation or acquisition, as the case may be, or such other matters relating thereto as are identified in a writing to the Administrative Agent and the Lenders and are satisfactory to the Administrative Agent and the LendersColumbia;
(iii) such resulting, surviving or succeeding entity, if other than Oglethorpe, shall execute and deliver to the Borrower shall be Co-Trustee, the surviving entity thereof orOwner Trustee, in RMLC, the event Owner Participant and the Borrower shall not be the surviving entity thereof, each of the following conditions shall be satisfied: (1) Lender at least 30 days prior to such surviving entity shall be organized in proposal a State of the United States with substantially all of its assets valid and businesses located and conducted in the United States and (2) the Administrative Agent shall have received (A) a certificate signed by a duly authorized officer of the Borrower, enforceable assumption agreement in form and substance reasonably satisfactory to each of such parties, by such entity of all of Oglethorpe's obligations under this Participation Agreement and each other Transaction Document to which Oglethorpe is then a party, together with an opinion of counsel acceptable to the Administrative AgentOwner Participant, (x) attaching a true the Trustees, RMLC and complete copy of each agreement, instrument or other document effecting such the Lender to the effect that the proposed merger, consolidation or acquisitionsale complies with this Section 8.2 and that the assumption agreement is valid, together with an agreement signed on behalf of such surviving entity pursuant to which such surviving entity shall have expressly assumed all of the indebtedness, liabilities binding and other obligations of the Borrower under and enforceable in accordance with its terms;
(iv) no event of default under the Loan Documents, and (y) certifying that such merger, consolidation or acquisition has been consummated in accordance with such agreements, instruments or other documents referred to in the immediately preceding clause (x), and (B) such documents, legal opinions and certificates as the Administrative Agent shall reasonably request relating to the organization, existence and, if applicable, good standing of such surviving entityOglethorpe Mortgage, the authorization of such merger, consolidation RUS Loan Contract or acquisition the Rocky Mountain Agreements shall have occurred and any other legal matters relating to such surviving entity, the assumption agreement referred to in the immediately preceding clause (x) or such merger, consolidation or acquisitionbe continuing; and
(ivv) unless the Administrative Agent Oglethorpe Mortgage Bonds which are then rated shall be rated at least "investment grade" by Xxxxx'x and S&P, both immediately prior to and subsequent to such consolidation, merger or sale, the net worth of the surviving entity, calculated in accordance with GAAP, shall not be less than the net worth of Oglethorpe immediately prior to such consolidation, merger or sale.
(b) Upon the consummation of such transaction described in Section 8.2(a), the surviving entity, if other than Oglethorpe, shall succeed to, and be substituted for, and may exercise every right and power and shall perform every obligation of, Oglethorpe under this Participation Agreement and each other Transaction Document to which Oglethorpe was a party immediately prior to such transaction, with the same effect as if such entity had been named herein and therein. Nothing contained herein shall permit any sublease, assignment or other arrangement for the use, operation or possession of the Undivided Interest except in compliance with the applicable provisions of the Facility Sublease. Oglethorpe will pay the reasonable costs and expenses of the Owner Participant, the Trustees, RMLC and the Lenders shall have received a certificate signed Lender in connection with any transaction contemplated by a duly authorized officer of the Borrower identifying the Person to be merged with or into, consolidated with, or acquired by, the Borrower, and certifying as to each of the matters set forth in subclauses (i) through (iii) of this clause (b)Section 8.2.
Appears in 1 contract
Merger, Consolidation, Sale of Assets. The Borrower shall not, and shall not permit any Subsidiary, the Utility to:
(a) Sell, lease, transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its properties and assets to any Person;
(b) Consolidate with or merge into any other Person (other than a merger of a Subsidiary into, or a consolidation of a Subsidiary with, the Borrower), unless:
(i) immediately before and after giving effect thereto, no Change in Control shall have occurred and no Default or Event of Default shall exist;
(ii) immediately before and after giving effect thereto, all of the representations and warranties contained in the Loan Documents shall be true and correct except as the context thereof otherwise requires and except for those representations and warranties which by their terms or by necessary implication are expressly limited to a state of facts existing at a time prior to such merger, consolidation or acquisition, as the case may be, or such other matters relating thereto as are identified in a writing to the Administrative Agent and the Lenders and are satisfactory to the Administrative Agent and the Lenders;
(iii) in the case of a transaction involving the Borrower, the Borrower shall be the surviving entity thereof, or in the event the Borrower shall not be the surviving entity thereof, each of the following conditions shall be: (x) such surviving entity shall have been incorporated or otherwise formed in a State of the United States with substantially all of its assets and business located and conducted in the United States, (a) such surviving entity shall, at the time of such merger, have a senior unsecured long term debt rating of BBB- or higher from S&P and Baa3 or higher from Xxxxx’x (provided that, if such surviving entity shall be a public utility holding company and shall not have at such time a senior unsecured long term debt rating from S&P and Xxxxx’x, then its primary utility Subsidiary shall have at such time a senior unsecured long term debt rating of BBB- or higher from S&P and Baa3 or higher from Xxxxx’x), and (a) such surviving entity shall have expressly assumed the obligations of the Borrower under the Loan Documents pursuant to a writing in form and substance satisfactory to the Administrative Agent;
(iv) in the case of a transaction involving the Borrower, the Administrative Agent and the Lenders shall have received a certificate signed by a duly authorized officer of the Borrower identifying the Person to be merged with or into, consolidated with, or acquired by, the Borrower, and certifying as to each of the matters set forth in subclauses (i) through (iii) of this clause (b); and
(v) in the case of a transaction involving the Utility, the Utility shall be the surviving entity thereof or, in the event the Borrower Utility shall not be the surviving entity thereof, each of the following conditions shall be satisfied: (1) such surviving entity shall be organized in a State of the United States with substantially all of its assets and businesses located and conducted in the United States and (2) the Administrative Agent shall have received (A) a certificate signed by a duly authorized officer of the Borrower, in form and substance satisfactory to the Administrative Agent, (x) attaching a true and complete copy of each agreement, instrument or other document effecting such merger, consolidation or acquisition, together with an agreement signed on behalf of such surviving entity pursuant to which such surviving entity shall have expressly assumed all of the indebtedness, liabilities and other obligations of the Borrower Utility under and in accordance with the Utility Credit Agreement and the other Loan DocumentsDocuments (as defined in the Utility Credit Agreement), and (y) certifying that such merger, consolidation or acquisition has been consummated in accordance with such agreements, instruments or other documents referred to in the immediately preceding clause (x), and (B) such documents, legal opinions and certificates as the Administrative Agent shall reasonably request relating to the organization, existence and, if applicable, good standing of such surviving entity, the authorization of such merger, consolidation or acquisition and any other legal matters relating to such surviving entity, the assumption agreement referred to in the immediately preceding clause (x) or such merger, consolidation or acquisition; and
(iv) the Administrative Agent and the Lenders shall have received a certificate signed by a duly authorized officer of the Borrower identifying the Person to be merged with or into, consolidated with, or acquired by, the Borrower, and certifying as to each of the matters set forth in subclauses (i) through (iii) of this clause (b).
Appears in 1 contract
Samples: Credit Agreement (Cleco Power LLC)
Merger, Consolidation, Sale of Assets. The Borrower shall not, Old Dominion covenants and shall not permit any Subsidiary, toagrees as follows:
(a) SellOld Dominion will not consolidate with or merge into any other Person, lease, or convey or transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its properties and assets to any Person;
(b) Consolidate with or merge into any other Person (other than a merger of a Subsidiary into, or a consolidation of a Subsidiary with, the Borrower), unlessunless immediately after giving effect to such transaction:
(i) immediately before and after giving effect theretono Payment Default, no Change in Control shall have occurred and no Bankruptcy Default or Event of Default shall existhave occurred and be continuing under the Operating Equipment Agreement or Operating Foundation Agreement;
(ii) immediately before and after giving effect theretothe entity resulting from such consolidation, all surviving in such merger or succeeding to such assets, if other than Old Dominion, shall be organized under the laws of the representations United States, any state thereof or the District of Columbia;
(iii) such resulting, surviving or succeeding entity, if other than Old Dominion, shall execute and warranties contained deliver to the Owner Trustee, the Facility Owner, the Owner Participant, the Agent and the Lenders an agreement in form and substance reasonably satisfactory to each of such parties containing an assumption by such entity of Old Dominion's obligations under this Participation Agreement and each other Operative Document to which Old Dominion is then a party;
(iv) no event of default under the Loan Documents Old Dominion Indenture or the Clover Agreements shall have occurred and be true continuing; and
(v) Old Dominion shall have delivered to the Owner Trustee, the Facility Owner, the Owner Participant, the Agent and correct except as the context thereof otherwise requires Lenders an Officer's Certificate and except for those representations an opinion of counsel reasonably satisfactory to each of such parties stating that such transaction and warranties such assumption agreement comply with this Section 7.2 and that all conditions precedent to the consummation of such transaction set forth herein have been complied with.
(b) Upon the consummation of such transaction, the surviving entity, if other than Old Dominion, shall succeed to, and be substituted for, and may exercise every right and power of, Old Dominion under this Participation Agreement and each other Operative Document to which by their terms or by necessary implication are expressly limited to Old Dominion was a state of facts existing at a time party immediately prior to such mergertransaction, consolidation with the same effect as if such entity had been named herein and therein. Nothing contained herein shall permit any sublease, assignment or acquisitionother arrangement for the use, operation or possession of the Equipment Interest or Foundation Interest except in compliance with the applicable provisions of the Operating Equipment Agreement or Operating Foundation Agreement, as the case may be, or such other matters relating thereto as are identified in a writing to the Administrative Agent and the Lenders and are satisfactory to the Administrative Agent and the Lenders;
(iii) the Borrower shall be the surviving entity thereof or, in the event the Borrower shall not be the surviving entity thereof, each of the following conditions shall be satisfied: (1) such surviving entity shall be organized in a State of the United States with substantially all of its assets and businesses located and conducted in the United States and (2) the Administrative Agent shall have received (A) a certificate signed by a duly authorized officer of the Borrower, in form and substance satisfactory to the Administrative Agent, (x) attaching a true and complete copy of each agreement, instrument or other document effecting such merger, consolidation or acquisition, together with an agreement signed on behalf of such surviving entity pursuant to which such surviving entity shall have expressly assumed all of the indebtedness, liabilities and other obligations of the Borrower under and in accordance with the Loan Documents, and (y) certifying that such merger, consolidation or acquisition has been consummated in accordance with such agreements, instruments or other documents referred to in the immediately preceding clause (x), and (B) such documents, legal opinions and certificates as the Administrative Agent shall reasonably request relating to the organization, existence and, if applicable, good standing of such surviving entity, the authorization of such merger, consolidation or acquisition and any other legal matters relating to such surviving entity, the assumption agreement referred to in the immediately preceding clause (x) or such merger, consolidation or acquisition; and
(iv) the Administrative Agent and the Lenders shall have received a certificate signed by a duly authorized officer of the Borrower identifying the Person to be merged with or into, consolidated with, or acquired by, the Borrower, and certifying as to each of the matters set forth in subclauses (i) through (iii) of this clause (b).
Appears in 1 contract
Samples: Participation Agreement (Old Dominion Electric Cooperative)
Merger, Consolidation, Sale of Assets. The Borrower shall Partnership will not, and shall will not permit any Subsidiary, to:
(a) Sell, lease, transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its properties and assets to any Person;
(b) Consolidate consolidate with or merge into any other Person other than the Partnership or another Subsidiary or permit any other Person to consolidate with or merge into the Partnership or any of its Subsidiaries or sell, lease or otherwise dispose of all or any substantial part of the assets of the Partnership and its Subsidiaries, except a sale, lease or other disposition from a Subsidiary to the Partnership. As used in this Section 4.5, a sale, lease or other disposition of assets shall be deemed to be a "substantial part" of the assets of the Partnership and its Subsidiaries only if the book value of such assets when added to the book value of all other assets sold, leased or otherwise disposed of by the Partnership and its Subsidiaries (other than a merger in the ordinary course of a Subsidiary intobusiness) during the immediately preceding period of twelve calendar months exceeds 10% of Consolidated Net Tangible Assets determined as of the end of the immediately preceding fiscal quarter of the Partnership; provided, or a consolidation of a Subsidiary withhowever, the Borrower), unless:
that (i) immediately before any sales during the Waiver Period of Vessels which are included in the Proposed Vessel Sales shall not be deemed to be assets sold, leased or otherwise disposed of for purposes of the computations required by the foregoing provisions of this Section 4.5 and after giving effect thereto, no Change in Control shall have occurred and no Default or Event of Default shall exist;
(ii) immediately before for any other sale, lease or disposition of assets subject to the foregoing limitations of this Section 4.5 which occur during the period beginning on December 1, 1999 and after giving effect thereto, all ending on and including the first anniversary of the representations and warranties contained last day of the Waiver Period, the limitation with respect thereto in the Loan Documents this sentence which reads "10% of Consolidated Net Tangible Assets" shall be true and correct except as the context thereof otherwise requires and except for those representations and warranties which by their terms amended to read "3% of Consolidated Net Tangible Assets". Sales or by necessary implication are expressly limited to a state of facts existing at a time prior to such merger, consolidation or acquisition, as the case may be, or such other matters relating thereto as are identified in a writing to the Administrative Agent and the Lenders and are satisfactory to the Administrative Agent and the Lenders;
(iii) the Borrower shall be the surviving entity thereof or, in the event the Borrower realization on delinquent receivables shall not be the surviving entity thereof, each included in any computation of the following conditions shall be satisfied: (1) such surviving entity shall be organized in a State of the United States with substantially all of its assets and businesses located and conducted in the United States and (2) the Administrative Agent shall have received (A) a certificate signed by a duly authorized officer of the Borrower, in form and substance satisfactory to the Administrative Agent, (x) attaching a true and complete copy of each agreement, instrument sales or other document effecting such merger, consolidation or acquisition, together with an agreement signed on behalf dispositions hereunder.
Section 2.2. Amendments to Section 4.10. Paragraph (g) of such surviving entity pursuant to which such surviving entity shall have expressly assumed all of the indebtedness, liabilities and other obligations of the Borrower under and in accordance with the Loan Documents, and Section 4.10 is redesignated as paragraph (y) certifying that such merger, consolidation or acquisition has been consummated in accordance with such agreements, instruments or other documents referred to in the immediately preceding clause (xh), the "and" at the end of paragraph (f) is hereby deleted and a new paragraph (Bg) such documents, legal opinions and certificates is added after paragraph (f) which reads as the Administrative Agent shall reasonably request relating to the organization, existence and, if applicable, good standing of such surviving entity, the authorization of such merger, consolidation or acquisition and any other legal matters relating to such surviving entity, the assumption agreement referred to in the immediately preceding clause (x) or such merger, consolidation or acquisition; and
(iv) the Administrative Agent and the Lenders shall have received a certificate signed by a duly authorized officer of the Borrower identifying the Person to be merged with or into, consolidated with, or acquired by, the Borrower, and certifying as to each of the matters set forth in subclauses (i) through (iii) of this clause (b).follows:
Appears in 1 contract
Samples: Third Supplemental Indenture of Trust and Security Agreement (Maritrans Inc /De/)
Merger, Consolidation, Sale of Assets. The Borrower shall not, and Issuer shall not permit consolidate or merge with or into any Subsidiaryother Person or sell, tolease or otherwise transfer its properties and assets substantially as an entirety to any Person, unless the Issuer provides 10 days' prior written notice thereof to the Trustee, each Holder and the Rating Agencies and unless:
(a) Sellthe Issuer shall be the surviving entity, lease, transfer or otherwise dispose of the Person (in one transaction if other than the Issuer) formed by such consolidation or in a series of transactions) all into which the Issuer is merged or substantially all of its to which the properties and assets of the Issuer are transferred substantially as an entirety shall be a Person organized and existing under the laws of the United States of America, any state thereof or the District of Columbia, and shall expressly assume, by an amendment or supplement, executed and delivered to any Person;
(b) Consolidate with or merge into any other Person (other than a merger the Trustee, each Holder and the Rating Agencies, in the case of a Subsidiary intoPerson succeeding the Issuer, or a consolidation the due and punctual payment of the principal of and premium and interest on all of the Securities and all of the other Senior Indebtedness hereunder and, in the case of a Subsidiary withPerson succeeding the Issuer, the Borrower)performance of every covenant and every other obligation or liability of this Indenture and the other Transaction Documents on the part of the Issuer to be performed or observed, unless:all as provided herein;
(i) immediately before and after giving effect theretoto such transaction, no Change in Control shall have occurred and no Default or Event of Default shall existhave occurred and be continuing;
(ii) immediately before and after giving effect theretothe Issuer shall have delivered to the Trustee an Officer's Certificate stating that such consolidation, all of the representations and warranties contained in the Loan Documents shall be true and correct except as the context thereof otherwise requires and except for those representations and warranties which by their terms or by necessary implication are expressly limited to a state of facts existing at a time prior to such merger, consolidation conveyance or acquisition, as the case may be, transfer and such amendment or such other matters relating thereto as are identified in a writing supplement to the Administrative Agent and the Lenders and are satisfactory to the Administrative Agent and the Lendersthis Indenture comply with this Section 7.18;
(iii) the Borrower Issuer shall be have taken all steps necessary to preserve the surviving entity thereof oreffectiveness, in the event the Borrower shall not be the surviving entity thereof, each perfection and priority of the following conditions shall be satisfied: (1) such surviving entity shall be organized in a State of Liens created under the United States with substantially all of its assets and businesses located and conducted in the United States and (2) the Administrative Agent shall have received (A) a certificate signed by a duly authorized officer of the Borrower, in form and substance satisfactory to the Administrative Agent, (x) attaching a true and complete copy of each agreement, instrument or other document effecting such merger, consolidation or acquisition, together with an agreement signed on behalf of such surviving entity pursuant to which such surviving entity shall have expressly assumed all of the indebtedness, liabilities and other obligations of the Borrower under and in accordance with the Loan Documents, and (y) certifying that such merger, consolidation or acquisition has been consummated in accordance with such agreements, instruments or other documents referred to in the immediately preceding clause (x), and (B) such documents, legal opinions and certificates as the Administrative Agent shall reasonably request relating to the organization, existence and, if applicable, good standing of such surviving entity, the authorization of such merger, consolidation or acquisition and any other legal matters relating to such surviving entity, the assumption agreement referred to in the immediately preceding clause (x) or such merger, consolidation or acquisition; andPledge Agreement;
(iv) the Administrative Agent and the Lenders Issuer shall have received delivered to the Trustee and each Holder evidence that the Rating Agency Condition shall be met;
(v) the successor entity shall be a certificate signed by a duly authorized officer registered "investment company" under the Investment Company Act; and
(vi) the Issuer shall have delivered the Trustee an Opinion of Counsel concerning such of the Borrower identifying the Person to be merged with or into, consolidated with, or acquired by, the Borrower, and certifying as to each of the foregoing matters set forth described in subclauses clauses (i) through and (iii) v). Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Issuer in accordance with this clause (b)Section 7.18, the successor entity formed by such consolidation or into which the Issuer is merged or into which such sale, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture with the same effect as if such successor entity had been named as the Issuer herein.
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Merger, Consolidation, Sale of Assets. (a) The Borrower shall not, and shall directly or indirectly: (x) consolidate, merge or amalgamate with or into another Person (whether or not permit any Subsidiarythe Borrower is the surviving corporation); or (y) sell, to:
(a) Sellassign, leasetransfer, transfer convey or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the properties or assets of the Borrower and its properties and assets Restricted Subsidiaries taken as a whole, in one or more related transactions, to any another Person;
(b) Consolidate with or merge into any other Person (other than a merger of a Subsidiary into, or a consolidation of a Subsidiary with, the Borrower), unless:
(i) either:
(A) the Borrower is the surviving corporation; or
(B) the Person (the “Successor Borrower”) formed by or surviving any such consolidation, merger or amalgamation (if other than the Borrower) or to which such sale, assignment, transfer, conveyance or other disposition has been made is organized or existing under the laws of the United States, any state of the United States or the District of Columbia and is either (I) a corporation or (II) a limited partnership or limited liability company and is (or has previously been) joined by a corporation as a co-Borrower of the Notes;
(ii) any Successor Borrower assumes all the obligations of the Borrower under this Agreement and the other Loan Documents and pursuant to agreements reasonably satisfactory to the Supermajority Lenders;
(iii) immediately before and after giving effect theretosuch transaction, no Change in Control shall have occurred and no Default or Event of Default shall exist;exists; and
(iiiv) immediately before and after giving effect thereto, all either (1) Parent (or the parent of the representations and warranties contained in the Loan Documents shall be true and correct except as the context thereof otherwise requires and except for those representations and warranties which by their terms or by necessary implication are expressly limited to a state of facts existing at a time prior to such merger, consolidation or acquisitionSuccessor Borrower, as the case may be) 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 permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 6.3(a); or (2) Parent (or the parent of the Successor Borrower, as the case may be) would have a Fixed Charge Coverage Ratio equal to or greater than the actual Fixed Charge Coverage Ratio of Parent for the four-quarter period immediately prior to such transaction. In addition, the Borrower will not, directly or indirectly, lease all or substantially all of the properties and assets of the Borrower and its respective Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person. Sections 6.12(a)(iii) and (iv) will not apply to: (i) a merger, amalgamation or consolidation of the Borrower with an Affiliate solely for the purpose of (a) reorganizing the Borrower as a different type of entity; provided that in the case where the surviving entity in such merger, amalgamation or consolidation is not a corporation, a corporation becomes (or has previously become) a co-borrower of the Term Loan Notes, or (b) reincorporating or reorganizing the Borrower in another jurisdiction; or (ii) any consolidation, amalgamation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Borrower and its Restricted Subsidiaries.
(b) Parent will not, directly or indirectly: (i) consolidate, merge or amalgamate with or into another Person (whether or not the Borrower is the surviving corporation); or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of Parent and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(i) either:
(A) Parent is the surviving corporation; or
(B) the Person (the “Successor Parent”) formed by or surviving any such consolidation, merger or amalgamation (if other matters relating thereto as are identified in a writing than the Borrower) or to which such sale, assignment, transfer, conveyance or other disposition has been made is organized or existing under the Administrative Agent laws of the United States, any state of the United States or the District of Columbia;
(ii) the Successor Parent assumes all the obligations of Parent under its Loan Guarantee, this Agreement and the Lenders other Loan Documents and are pursuant to agreements reasonably satisfactory to the Administrative Agent and the Required Lenders;
(iii) the Borrower shall be the surviving entity thereof orimmediately after such transaction, in the event the Borrower shall not be the surviving entity thereof, each no Default or Event of the following conditions shall be satisfied: (1) such surviving entity shall be organized in a State of the United States with substantially all of its assets and businesses located and conducted in the United States and (2) the Administrative Agent shall have received (A) a certificate signed by a duly authorized officer of the Borrower, in form and substance satisfactory to the Administrative Agent, (x) attaching a true and complete copy of each agreement, instrument or other document effecting such merger, consolidation or acquisition, together with an agreement signed on behalf of such surviving entity pursuant to which such surviving entity shall have expressly assumed all of the indebtedness, liabilities and other obligations of the Borrower under and in accordance with the Loan Documents, and (y) certifying that such merger, consolidation or acquisition has been consummated in accordance with such agreements, instruments or other documents referred to in the immediately preceding clause (x), and (B) such documents, legal opinions and certificates as the Administrative Agent shall reasonably request relating to the organization, existence and, if applicable, good standing of such surviving entity, the authorization of such merger, consolidation or acquisition and any other legal matters relating to such surviving entity, the assumption agreement referred to in the immediately preceding clause (x) or such merger, consolidation or acquisitionDefault exists; and
(iv) either: (1) Parent or Successor Parent (as the case may be) 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 permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 6.3; or (2) Parent or the Successor Parent (as the case may be), after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would have a Fixed Charge Coverage Ratio equal to or greater than the actual Fixed Charge Coverage Ratio of Parent for the four-quarter period immediately prior to such transaction and related transactions. In addition Parent will not, directly or indirectly, lease all or substantially all of the properties and assets of Parent and its respective Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person. Sections 6.12(b)(iii) and (iv) will not apply to: (i) a merger, amalgamation or consolidation of Parent with an Affiliate solely for the purpose of (a) reorganizing Parent as a different type of entity, or (b) reincorporating or reorganizing Parent in another jurisdiction; or (ii) any consolidation, amalgamation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among Parent and its Restricted Subsidiaries.
(c) In case of any such consolidation, merger, sale, conveyance, transfer or lease in which the Borrower or Parent (as the case may be) is not the surviving company and upon the assumption by the Successor Borrower or the Successor Parent (as the case may be), by an amendment to this Agreement, executed and delivered to the Administrative Agent and Agent, of the Lenders shall have received a certificate signed by a duly authorized officer obligations of the Borrower identifying or Parent (as the case may be) as required by Section 6.12, such Successor Borrower or Successor Parent shall succeed to, and be substituted for, and may exercise every right and power of, the Borrower or Parent, respectively, with the same effect as if it had been named herein as the party of this first part, and the Borrower or Parent (as the case may be) shall be discharged from its obligations under the Loans, the Loan Guarantees and this Agreement (as applicable). In the event of any such consolidation, merger, sale, conveyance or transfer, upon compliance with Section 6.12, the Person to named as the “Borrower” or “Parent” (as the case may be) in this Agreement or any successor that shall thereafter have become such in the manner prescribed in this Section 6.12 may be merged with or intodissolved, consolidated with, or acquired by, the Borrower, wound up and certifying liquidated at any time thereafter and such Person shall be discharged from its liabilities as to each borrower of the matters set forth Loans and from its obligations under this Agreement. The provisions in subclauses (i) through (iii) this Section 6.12 shall not apply to the sale, conveyance, transfer or lease of this clause (b)assets among the Subsidiaries of the Parent.
Appears in 1 contract
Merger, Consolidation, Sale of Assets. The Borrower shall not, and shall not permit any Subsidiarythe Utility, to:
(a) Sell, lease, transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its properties and assets to any Person;
(b) Consolidate with or merge into any other Person (other than a merger of a Subsidiary into, or a consolidation of a Subsidiary with, the Borrower), unless:
(i) immediately before and after giving effect thereto, no Change in Control shall have occurred and no Default or Event of Default shall exist;
(ii) immediately before and after giving effect thereto, all of the representations and warranties contained in the Loan Documents shall be true and correct except as the context thereof otherwise requires and except for those representations and warranties which by their terms or by necessary implication are expressly limited to a state of facts existing at a time prior to such merger, consolidation or acquisition, as the case may be, or such other matters relating thereto Cleco Corporation Credit Agreement as are identified in a writing to the Administrative Agent and the Lenders and are satisfactory to the Administrative Agent and the Lenders;
(iii) in the case of such a transaction involving the Borrower, the Borrower shall be the surviving entity thereof, or in the event the Borrower shall not be the surviving entity thereof, each of the following conditions shall be: (x) such surviving entity shall have been incorporated or otherwise formed in a State of the United States with substantially all of its assets and business located and conducted in the United States, (y) such surviving entity shall, at the time of such merger, have a senior unsecured long term debt rating of BBB- or higher from S&P and Baa3 or higher from Mxxxx’x (provided that, if such surviving entity shall be a public utility holding company and shall not have at such time a senior unsecured long term debt rating from S&P and Mxxxx’x, then its primary utility Subsidiary shall have at such time a senior unsecured long term debt rating of BBB- or higher from S&P and Baa3 or higher from Mxxxx’x), and (z) such surviving entity shall have expressly assumed the obligations of the Borrower under the Loan Documents pursuant to a writing in form and substance satisfactory to the Administrative Agent; and
(iv) In the case of a transaction involving the Borrower, the Administrative Agent and the Lenders shall have received a certificate signed by a duly authorized officer of the Borrower identifying the Person to be merged with or into, consolidated with, or acquired by, the Borrower, and certifying as to each of the matters set forth in subclauses (i) through (iii) of this clause (b); and
(v) in the case of a transaction involving the Utility, the Utility shall be the surviving entity thereof or, in the event the Borrower Utility shall not be the surviving entity thereof, each of the following conditions shall be satisfied: (1) such surviving entity shall be organized in a State of the United States with substantially all of its assets and businesses located and conducted in the United States and (2) the Administrative Agent shall have received (A) a certificate signed by a duly authorized officer of the Borrower, in form and substance satisfactory to the Administrative Agent, (x) attaching a true and complete copy of each agreement, instrument or other document effecting such merger, consolidation or acquisition, together with an agreement signed on behalf of such surviving entity pursuant to which such surviving entity shall have expressly assumed all of the indebtedness, liabilities and other obligations of the Borrower Utility under and in accordance with the Utility Credit Agreement and the other Loan DocumentsDocuments (as defined therein), and (y) certifying that such merger, consolidation or acquisition has been consummated in accordance with such agreements, instruments or other documents referred to in the immediately preceding clause (x), and (B) such documents, legal opinions and certificates as the Administrative Agent shall reasonably request relating to the organization, existence and, if applicable, good standing of such surviving entity, the authorization of such merger, consolidation or acquisition and any other legal matters relating to such surviving entity, the assumption agreement referred to in the immediately preceding clause (x) or such merger, consolidation or acquisition; and
(iv) the Administrative Agent and the Lenders shall have received a certificate signed by a duly authorized officer of the Borrower identifying the Person to be merged with or into, consolidated with, or acquired by, the Borrower, and certifying as to each of the matters set forth in subclauses (i) through (iii) of this clause (b).
Appears in 1 contract
Samples: Credit Agreement (Cleco Corp)
Merger, Consolidation, Sale of Assets. The Borrower shall not, and shall not permit any Subsidiary, to:
(a) Sell, lease, transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its properties and assets to any Person;
(b) Consolidate with or merge into any other Person (other than a merger of a Subsidiary into, or a consolidation of a Subsidiary with, the Borrower), unless:
(i) immediately before and after giving effect thereto, no Change in Control shall have occurred and no Default or Event of Default shall exist;
(ii) immediately before and after giving effect thereto, all of the representations and warranties contained in the Loan Documents shall be true and correct except as the context thereof otherwise requires and except for those representations and warranties which by their terms or by necessary implication are expressly limited to a state of facts existing at a time prior to such merger, consolidation or acquisition, as the case may be, or such other matters relating thereto as are identified in a writing to the Administrative Agent and the Lenders and are satisfactory to the Administrative Agent and the Lenders;
(iii) the Borrower shall be the surviving entity thereof or, in the event the Borrower shall not be the surviving entity thereof, each of the following conditions shall be satisfied: (1) such surviving entity shall be organized in a State of the United States with substantially all of its assets and businesses located and conducted in the United States and (2) the Administrative Agent shall have received (A) a certificate signed by a duly authorized officer of the Borrower, in form and substance satisfactory to the Administrative Agent, (x) attaching a true and complete copy of each agreement, instrument or other document effecting such merger, consolidation or Cleco Power LLC Credit Agreement acquisition, together with an agreement signed on behalf of such surviving entity pursuant to which such surviving entity shall have expressly assumed all of the indebtedness, liabilities and other obligations of the Borrower under and in accordance with the Loan Documents, and (y) certifying that such merger, consolidation or acquisition has been consummated in accordance with such agreements, instruments or other documents referred to in the immediately preceding clause (x), and (B) such documents, legal opinions and certificates as the Administrative Agent shall reasonably request relating to the organization, existence and, if applicable, good standing of such surviving entity, the authorization of such merger, consolidation or acquisition and any other legal matters relating to such surviving entity, the assumption agreement referred to in the immediately preceding clause (x) or such merger, consolidation or acquisition; and
(iv) the Administrative Agent and the Lenders shall have received a certificate signed by a duly authorized officer of the Borrower identifying the Person to be merged with or into, consolidated with, or acquired by, the Borrower, and certifying as to each of the matters set forth in subclauses (i) through (iii) of this clause (b).
Appears in 1 contract
Samples: Credit Agreement (Cleco Corp)