When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless: (i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture; (ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing; (iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and (iv) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction. (b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee; (ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and (iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 6 contracts
Samples: Indenture (NCR Corp), Indenture (NCR Corp), Indenture (NCR Corp)
When Company May Merge or Transfer Assets. (a) The Company shall not merge, consolidate or amalgamate with or merge with into any other Person (other than a merger of a Wholly Owned Restricted Subsidiary into the Company) or intosell, or conveytransfer, transfer or assign, lease, in one transaction convey or a series otherwise dispose of transactions, directly or indirectly, all or substantially all its assets to, Property in any Person, one transaction or series of transactions unless:
(i) either (Aa) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (Athe "Surviving Person") or the Surviving Person (B)if other than the Company) formed by such merger, the “Successor Company”) consolidation or amalgamation or to which such sale, transfer, assignment, lease, conveyance or disposition is made shall (1) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia Columbia;
(provided that, b) the Surviving Person (if other than the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2Company) expressly assumeassumes, by an supplemental indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, executed and delivered to the Trustee by such Surviving Person, the due and punctual payment of the principal of, and premium, if any, and interest on, all the obligations Securities, according to their tenor, and the due and punctual performance and observance of all the Company under covenants and conditions of this Indenture to be performed by the Securities and this IndentureCompany;
(iic) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all the Property of the Company, such Property shall have been transferred as an entirety or virtually as an entirety to one Person;
(d) immediately before and after giving pro forma effect to such transaction or series of transactions on a pro forma basis (and treating treating, for purposes of this clause (d) and clause (e) below, any Indebtedness which becomes Debt that becomes, or is anticipated to become, an obligation of the Successor Company Surviving Person or any Restricted Subsidiary as a result of such transaction or series of transactions as having been Incurred by such Successor Company the Surviving Person or such Restricted Subsidiary at the time of such transactiontransaction or series of transactions), no Default or Event of Default shall have occurred and be continuing;
(iiie) immediately after giving pro forma effect to such transactiontransaction or series of transactions on a pro forma basis, either (xA) the Successor Company or the Surviving Person, as the case may be, would be able to Incur an additional at least $1.00 of Coverage Indebtedness pursuant to additional Debt under clause (1) of the first paragraph of Section 4.03(a) 4.03, or (yB) in the event of such a transaction or series of transactions with Sprint PCS or a Sprint PCS Affiliate occurring prior to January 1, 2005, (i) the Consolidated Coverage Leverage Ratio for immediately following such transaction or series of transactions would decrease as compared to the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries Leverage Ratio immediately prior to such transaction; andtransaction or series of transactions, and (ii) after giving effect to such transaction or series of transactions, the Leverage Ratio would not exceed 7.75 to 1.0;
(ivf) the Company shall have delivered deliver, or cause to be delivered, to the Trustee Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, transaction and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiarysupplemental indenture, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect in respect thereto comply with this Section 5.01 and that all conditions precedent herein provided for relating to such transaction have been satisfied; and
(g) the Surviving Person shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders will not recognize income, gain or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person loss for U.S. federal income tax purposes as a result of such transaction as having been issued by such Person or series of transactions and will be subject to U.S. federal income tax on the same amounts and at the time same times as would be the case if the transaction or series of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall transactions had not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantoroccurred.
Appears in 4 contracts
Samples: Indenture (Alamosa Delaware Inc), Indenture (Alamosa Delaware Inc), Indenture (Alamosa Holdings Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all the assets of the Company and its assets Restricted Subsidiaries, taken as a whole, to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities Notes and this the Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii3) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and4.08(a);
(iv4) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer lease and such supplemental indenture (if any) comply with this the Indenture; and
(5) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders will not recognize income, gain or loss for Federal income tax purposes as a result of such transaction and will not be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such transaction had not occurred; provided, however, that clause (iiiSection 5.01(a)(3) shall will not be applicable to (A) the Company or a Restricted Subsidiary consolidating with, merging into into, conveying, transferring or transferring leasing all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or a Subsidiary Guarantor, or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionjurisdiction within the United States of America or (C) at a time when the Company and its Restricted Subsidiaries are not subject to the Suspended Covenants. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company (if not the Company) shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this the Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transactionNotes.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person unless:
: (i1) except in the case of a Subsidiary Guarantor (xother than Encore Operating, L.P. and any Subsidiary Guarantor that directly or indirectly holds an equity interest in Encore Operating, L.P.) that has been disposed of in its entirety to another Person (other than to the Company or an Affiliate of the Company), whether through a merger, consolidation or sale of Capital Stock or assets or (y) thatassets, as a result if in connection therewith the Company complies with its obligations under Section 4.11 in respect of the disposition of all or a portion of its Capital Stock, ceases to be a Subsidiarysuch disposition, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and and, if such Person is not already a Subsidiary Guarantor, such Person shall expressly assume, by a Guarantee Guaranty Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
Guaranty; (ii2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
and (iii3) in the event a Guaranty Agreement is executed and delivered pursuant to clause (1) above, the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer lease and such Guarantee Guaranty Agreement, if any, complies with this the Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 4 contracts
Samples: First Supplemental Indenture (Denbury Resources Inc), Third Supplemental Indenture (Denbury Resources Inc), Third Supplemental Indenture (Encore Acquisition Co)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or intointo or wind up into (whether or not the Company is the surviving corporation), or conveysell, transfer or assign, transfer, lease, in one transaction convey or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
(i) either (A) the Company shall be is the surviving corporation or the Person formed by or surviving any such consolidation or merger (B) if other than the resulting, surviving or transferee Person (in each of clauses (ACompany) or (B)to which such sale, the “Successor Company”) assignment, transfer, lease, conveyance or other disposition shall (1) be have been made is a corporation corporation, partnership or limited liability company organized and or existing under the laws of the United States of AmericaStates, any State thereof or state thereof, the District of Columbia Columbia, or any territory thereof (provided thatthe Company or such Person, if as the case may be, being herein called the "Successor Company");
(ii) the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in (if other than the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all the obligations of the Company under this Indenture and the Securities and this Indenturepursuant to supplemental indentures hereto or other documents or instruments in form reasonably satisfactory to the Trustee;
(iiiii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary of its Restricted Subsidiaries as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transaction), ) no Default or Event of Default shall have occurred and be continuing;
(iiiiv) 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
(xA) the Successor Company would be able permitted to Incur an additional at least $1.00 of Coverage additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a) or or
(yB) the Consolidated Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indentures hereto confirmed that its Senior Guarantee shall apply to such Person's obligations under this Indenture and the Securities; and
(ivvi) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture indentures (if any) comply with this Indenture; provided. The Successor Company shall succeed to, howeverand be substituted for, that clause the Company under this Indenture and the Securities. Notwithstanding the foregoing clauses (iii) shall not be applicable to and (Aiv), (1) a any Restricted Subsidiary consolidating may consolidate with, merging merge into or transferring transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary and (so long as no Capital Stock of the Company is distributed to any Person) or (B2) the Company merging may merge with an Affiliate of the Company incorporated solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes state of this the United States so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.
(b) Subject to the provisions of Section 5.0111.02(b) (which govern the release of a Senior Guarantee upon the sale or disposition of a Restricted Subsidiary that is a Guarantor), no Guarantor shall, and the saleCompany shall not permit any Guarantor to, consolidate or merge with or into or wind up into (whether or not such Guarantor is the surviving corporation), or sell, assign, transfer, lease, 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 the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed related transactions to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person unless:
(i) except in such Guarantor is the case of a Subsidiary Guarantor surviving corporation or the Person formed by or surviving any such consolidation or merger (x) that has been disposed of in its entirety to another Person (if other than such Guarantor) or to the Company which such sale, assignment, transfer, lease, conveyance or an Affiliate of the Company)other disposition shall have been made is a corporation, whether through a merger, consolidation partnership or sale of Capital Stock limited liability company organized 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of AmericaStates, or any State thereof or state thereof, the District of Columbia, and or any territory thereof (such Person shall Guarantor or such Person, as the case may be, being herein called the "Successor Guarantor");
(ii) the Successor Guarantor (if other than such Guarantor) expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, assumes all the obligations of such Subsidiary, if any, Guarantor under its Subsidiary Guaranteethis Indenture and such Guarantor's Senior Guarantee pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(iiiii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving Successor Guarantor or transferee Person any of its Subsidiaries as a result of such transaction as having been issued Incurred by the Successor Guarantor or such Person Subsidiary at the time of such transaction), ) no Default or Event of Default shall have occurred and be continuing; and
(iiiiv) the Company delivers such Guarantor shall have delivered or caused to be delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, supplemental indentures (if any, complies ) comply with this Indenture; provided. The Successor Guarantor shall succeed to, howeverand be substituted for, that such Guarantor under this Section 5.01 shall Indenture and such Guarantor's Senior Guarantee. Notwithstanding the foregoing, a Guarantor may merge with an Affiliate incorporated solely for the purpose of reincorporating such Guarantor in another state of the United States so long as the amount of Indebtedness of the Guarantor is not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantorincreased thereby.
Appears in 4 contracts
Samples: Indenture (TRW Automotive Inc), Indenture (TRW Automotive Inc), Indenture (TRW Automotive Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate consolidate, merge or amalgamate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or lease its properties and assets of the Company and its Restricted Subsidiaries taken as a series of transactions, directly or indirectly, all or whole substantially all its assets to, as an entirety to any Personperson, unless:
(ia) either (Ai) the Company shall be the surviving continuing corporation or (Bii) the resultingperson (if other than the Company) formed by such consolidation or into which the Company is merged or amalgamated or the person which acquires by conveyance, surviving transfer or transferee Person (in each lease the properties and assets of clauses the Company substantially as an entirety (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2B) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities Notes and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Event of Default and no event which, after notice or lapse of time, would become an Event of Default, shall have occurred happened and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, amalgamation, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be is merged or the successor person to the Company and which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a lease, the Company shall be released discharged from all obligations and covenants under this Indenture and the obligation Notes. Subject to pay Section 9.06, the principal Company, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of such successor person and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such discharge and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 4 contracts
Samples: Indenture (PRG Schultz International Inc), Indenture (PRG Schultz International Inc), Indenture (PRG Schultz International Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactionsnot, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not the Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
(i) either (A) the Company shall be is the surviving corporation Person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (B) if other than the resulting, surviving or transferee Person (in each of clauses (ACompany) or (B)to which such sale, the “Successor Company”) assignment, transfer, lease, conveyance or other disposition shall (1) be have been made is a corporation corporation, partnership or limited liability company organized and or existing under the laws of the United States of AmericaStates, any State thereof or state thereof, the District of Columbia Columbia, or any territory thereof (the Company or such Person, as the case may be, being herein called the “Successor Company”); provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized that in the jurisdictions permitted by this clause (1) and case where the surviving Person is not a corporation, a co-obligor of the SecuritiesSecurities is a corporation;
(ii) and the Successor Company (2if other than the Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all the obligations of the Company under this Indenture and the Securities and this Indenturepursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(iiiii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which that becomes an obligation of the Successor Company or any Subsidiary of the Restricted Subsidiaries as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or shall have occurred and be continuing;
(iiiiv) 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 (xand treating any Indebtedness that becomes an obligation of the Successor Company or any of the 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 able permitted to Incur an additional at least $1.00 of Coverage additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a) or ); or
(yB) the Consolidated Fixed Charge Coverage Ratio for the Successor Company and its the Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its the Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Securities; and
(ivvi) the Company shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture indentures (if any) comply with this Indenture; provided. The Successor Company (if other than the Company) shall succeed to, howeverand be substituted for, that clause the Company under this Indenture and the Securities, and in such event the Company will automatically be released and discharged from its obligations under this Indenture and the Securities. Notwithstanding the foregoing clauses (iii) shall not be applicable and (iv) of this Section 5.01, (x) subject to (A) a the restrictions on Guarantors described in Section 5.01(b), any Restricted Subsidiary consolidating withmay merge, merging into consolidate or transferring amalgamate with or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary, and (so long as no Capital Stock of the Company is distributed to any Person) or (By) the Company merging may merge, consolidate or amalgamate with an Affiliate of the Company incorporated solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes state of this Section 5.01the United States, the District of Columbia or any territory of the United States or may convert into a limited liability company, so long as the amount of Indebtedness of the Company and the Restricted Subsidiaries is not increased thereby. This Article 5 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 10.02(b) (which govern the release of a Guarantee upon the sale or disposition of a Restricted Subsidiary that is a Guarantor), each Guarantor shall not, and the Company shall not permit any Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Guarantor is the surviving Person), or sell, assign, transfer, lease, 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, any Person (other than any such sale, assignment, transfer, lease, conveyance or disposition in connection with the Transactions described in the Offering Memorandum) unless:
(i) either (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 shall have been made is a corporation, partnership or limited liability company organized or existing under the laws of the CompanyUnited States, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power ofany state thereof, the Company under this IndentureDistrict of Columbia, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of or any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries territory thereof (such Guarantor or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assetssuch Person, as the case may be, of being herein called the Company “Successor Guarantor”) and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person unless:
(i) except in the case of a Subsidiary Successor Guarantor (x) that has been disposed of in its entirety to another Person (if other than to such Guarantor) expressly assumes all the Company obligations of or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing Guarantor under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, this Indenture and such Person shall expressly assume, by Guarantor’s Guarantee pursuant to a Guarantee Agreement, supplemental indenture or other documents or instruments in a form reasonably satisfactory to the Trustee, all the obligations or (b) such sale or disposition or consolidation, amalgamation or merger is not in violation of such Subsidiary, if any, under its Subsidiary Guarantee;Section 4.06; and
(ii) immediately after giving effect to the Successor Guarantor (if other than such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default Guarantor) shall have occurred and delivered or caused to be continuing; and
(iii) the Company delivers delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such Guarantee Agreement, supplemental indenture (if any, complies ) comply with this Indenture; provided. Except as otherwise provided in this Indenture, howeverthe Successor Guarantor (if other than such Guarantor) will succeed to, that and be substituted for such Guarantor under this Section 5.01 shall Indenture and such Guarantor’s Guarantee, and such Guarantor will automatically be released and discharged from its obligations under this Indenture and such Guarantor’s Guarantee. Notwithstanding the foregoing, (1) a Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Guarantor in another state of the United States, the District of Columbia or any territory of the United States so long as the amount of Indebtedness of the Guarantor is not be applicable to increased thereby and (2) a Restricted Subsidiary consolidating withGuarantor may merge, merging amalgamate or consolidate with another Guarantor or the Company. In addition, notwithstanding the foregoing, any Guarantor may consolidate, amalgamate or merge with or into or transferring wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or part substantially all of its properties and or assets to (collectively, a “Transfer”) to, (x) the Company or any Guarantor or (y) any Restricted Subsidiary that is not a Subsidiary Guarantor; provided that at the time of each such Transfer pursuant to clause (y) the aggregate amount of all such Transfers since the Issue Date shall not exceed 5.0% of the consolidated assets of the Company and the Guarantors as shown on the most recent available balance sheet of the Company and the Restricted Subsidiaries after giving effect to each such Transfer and including all Transfers occurring from and after the Issue Date (excluding Transfers in connection with the Transactions described in the Offering Memorandum).
Appears in 3 contracts
Samples: Indenture (MPM Silicones, LLC), Indenture (MPM Silicones, LLC), Indenture (MPM Silicones, LLC)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or lease its properties and assets substantially all its assets to, as an entirety to any Personperson, unless:
(ia) either (A1) the Company shall be the surviving continuing corporation or (B2) the resultingperson (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, surviving transfer or transferee Person lease the properties and assets of the Company substantially as an entirety (in each of clauses (A) or (B), the “Successor Company”i) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all lease of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company, but a bona fide pledge or hypothecation will be deemed not to be prohibited by this Indenture. The Successor successor person formed by such consolidation or into which the Company shall be is merged or the successor person to the Company and which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a leaselease and obligations the Company may have under a supplemental indenture pursuant to Section 10.14, the Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.06, the Company, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 3 contracts
Samples: Indenture (Omnicom Group Inc), Indenture (Omnicom Capital Inc), Indenture (Omnicom Group Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”"SUCCESSOR COMPANY") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii3) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction4.3(a); and
(iv4) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; providedPROVIDED, howeverHOWEVER, that clause (iii3) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 3 contracts
Samples: Indenture (Cb Richard Ellis Services Inc), Indenture (Cb Richard Ellis Services Inc), Indenture (Koll Donald M)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or lease its properties and assets substantially all its assets to, as an entirety to any Personperson, unless:
(ia) either (A1) the Company shall be the surviving continuing corporation or (B2) the resultingperson (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, surviving transfer or transferee Person lease the properties and assets of the Company substantially as an entirety (in each of clauses (A) or (B), the “Successor Company”i) shall (1) be a corporation corporation, partnership or limited liability company trust organized and validity existing under the laws of the United States of America, or any State state thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article and that clause (iii) shall not be applicable all conditions precedent herein relating to (A) a Restricted Subsidiary consolidating with, merging such transaction have been satisfied. The successor person formed by such consolidation or into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of which the Company is distributed merged or the successor person to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes of this Section 5.01, the sale, lease, which such conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part lease of its properties and assets to substantially as an entirety, the Company or a Subsidiary Guarantorshall be discharged from all obligations and covenants under this Indenture and the Securities.
Appears in 3 contracts
Samples: Indenture (Apartment Investment & Management Co), Indenture (Apartment Investment & Management Co), Indenture (Apartment Investment & Management Co)
When Company May Merge or Transfer Assets. (a) The Company Company, in a single transaction or through a series of related transactions, shall not consolidate with or merge with or into, into any other person or convey, convey or transfer or (by lease, in one transaction assignment, sale or a series of transactions, directly or indirectly, otherwise) all or substantially all of its properties and assets to, any Personto another person or group of affiliated persons, unless:
(ia) either (A1) the Company shall be the surviving continuing corporation or (B2) the resulting, surviving person (if other than the Company) formed by such consolidation or transferee Person into which the Company is merged or to which all or substantially all of the properties and assets of the Company are conveyed or transferred (in each of clauses (A) or (B), the “Successor Company”i) shall (1) be a corporation or corporation, partnership, limited liability company or trust organized and validity existing under the laws of the United States of America, or any State state thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction and the assumption contemplated by clause (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transactiona)(ii), above, no Default or Event of Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance or transfer and and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, conveyance or transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another wholly owned Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the conveyance or transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be is merged or the successor person to the Company and which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, of the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part lease of its properties and assets to substantially as an entirety, the Company or shall be discharged from all obligations and covenants under this Indenture, the Securities and coupons. The Trustee shall enter into a Subsidiary Guarantorsupplemental indenture to evidence the succession and substitution of such successor person and such discharge and release of the Company.
Appears in 3 contracts
Samples: Indenture (Litton Industries Inc), Indenture (Mail Well Inc), Indenture (Litton Industries Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or lease its properties and assets substantially all its assets to, as an entirety to any Personperson, unless:
(ia) either (A1) the Company shall be the surviving continuing corporation or (B2) the resultingperson (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, surviving transfer or transferee Person lease the properties and assets of the Company substantially as an entirety (in each of clauses (A) or (B), the “Successor Company”i) shall (1) be a corporation or corporation, limited liability company company, partnership or trust organized and validly existing under the laws of the United States of America, or any State state thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Securities Notes and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging such transaction have been satisfied. The successor person formed by such consolidation or into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of which the Company is distributed merged or the successor person to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes of this Section 5.01, the sale, lease, which such conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and lease is made shall succeed to, and be substituted for, and may exercise every right and power of, of the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part lease of its properties and assets to substantially as an entirety, the Company or a Subsidiary Guarantorshall be discharged from all obligations and covenants under this Indenture, and the Notes.
Appears in 3 contracts
Samples: Trust Indenture and Security Agreement (Korth Direct Mortgage LLC), Trust Indenture and Security Agreement (Korth Direct Mortgage LLC), Trust Indenture and Security Agreement (Korth Direct Mortgage LLC)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or corporation, limited liability company company, limited partnership or business trust organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction); and
(iv) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this IndentureIndenture with the same effect as if the Successor Company had been named as the Company herein, and thereafter the predecessor CompanyPerson shall be relieved of all obligations and covenants under this Indenture and the Securities, except that the predecessor Company in the case of a leaseconveyance, transfer or lease of all or substantially all its assets shall not be released from the obligation to pay the principal of and interest on the Securities. For all purposes Notwithstanding the foregoing clauses (ii) and (iii) of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become any Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this IndentureSubsidiary may consolidate with, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger into or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary GuarantorCompany.
Appears in 3 contracts
Samples: Indenture (Riverwood Holding Inc), Indenture (Ric Holding Inc), Indenture (Riverwood Holding Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all of its properties and assets to, as an entirety to any Personperson, unless:
(ia) either (A1) the Company shall be the surviving continuing corporation or (B2) the resultingperson (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, surviving transfer or transferee Person lease the properties and assets of the Company substantially as an entirety (in each of clauses (A) or (B), the “Successor Company”i) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be is merged or the successor person to the Company and which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a leaselease and any obligations the Company may have under a supplemental indenture pursuant to Section 10.14, the Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.06, the Company, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 3 contracts
Samples: Indenture (Laboratory Corp of America Holdings), Indenture (Laboratory Corp of America Holdings), Indenture (Supervalu Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not not, directly or indirectly, consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all its assets assets, in one or a series of related transactions, to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) will be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in (if not the jurisdictions permitted by this clause (1Company) and a co-obligor of the Securities) and (2) will expressly assume, by an indenture a supplemental theretoindenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii3) immediately after giving pro forma effect to such transaction, either (xA) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to under Section 4.03(a) or (yB) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv4) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause .
(iiib) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except other than in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(bc) The Company shall not permit any Subsidiary Guarantor to to, directly or indirectly, consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, lease all or substantially all of its assets assets, in or a series of related transactions, to any Person unless:
(i1) except in the case of a Subsidiary Guarantor (xi) that has been disposed of in its entirety to another Person (other than to the Company or an Affiliate of the Company), whether through a merger, consolidation or sale of Capital Stock or assets or (yii) that, as a result of the disposition of all or a portion of its Capital Stock, ceases to be a Subsidiary, the resulting, surviving or transferee Person (if not such Subsidiarythe "Successor Guarantor") shall be a Person corporation organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person (if not such Subsidiary Guarantor) shall expressly assume, by a Guarantee Agreementsupplemental indenture, executed and delivered to the Trustee, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, Subsidiary Guarantor under its Subsidiary Guarantee;
(ii2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving Successor Guarantor or transferee Person any Restricted Subsidiary as a result of such transaction as having been issued Incurred by the Successor Guarantor or such Person Restricted Subsidiary at the time of such transaction), no Default shall have occurred and be continuing; and
(iii3) the Company delivers will have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, supplemental indenture (if any, complies ) comply with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a .
(d) Notwithstanding the foregoing:
(1) any Restricted Subsidiary consolidating may Consolidate with, merging merge into or transferring transfer all or part of its properties and assets to the Company or a any Subsidiary GuarantorGuarantor and
(2) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction within the United States of America, any State thereof or the District of Columbia to realize tax or other benefits.
Appears in 3 contracts
Samples: Indenture (Goodyear Tire & Rubber Co /Oh/), Indenture (Goodyear Tire & Rubber Co /Oh/), Indenture (Goodyear Tire & Rubber Co /Oh/)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactionsnot, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not the Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
(i) either (A) the Company shall be is the surviving corporation Person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (B) if other than the resulting, surviving or transferee Person (in each of clauses (ACompany) or (B)to which such sale, the “Successor Company”) assignment, transfer, lease, conveyance or other disposition shall (1) be have been made is a corporation corporation, partnership or limited liability company organized and or existing under the laws of the United States of AmericaStates, any State thereof or state thereof, the District of Columbia Columbia, or any territory thereof (provided thatthe Company or such Person, if as the case may be, being herein called the “Successor Company”);
(ii) the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in (if other than the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all the obligations of the Company under this Indenture, the Securities and this Indenturethe Security Documents pursuant to supplemental indentures;
(iiiii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Company (including any Successor Company thereto) or any Subsidiary of its Restricted Subsidiaries as a result of such transaction as having been Incurred by such Successor the Company or such Restricted Subsidiary at the time of such transaction), ) no Default or Event of Default shall have occurred and be continuing;
(iiiiv) 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 (xand treating any Indebtedness which becomes an obligation of the Company (including any Successor Company thereto) or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Company or such Restricted Subsidiary at the time of such transaction), either
(A) the Successor Company would be able permitted to Incur an additional at least $1.00 of Coverage additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a) or ); or
(yB) the Consolidated Fixed Charge Coverage Ratio for the Company (including any Successor Company thereto) and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Note Guarantee shall apply to such Person’s obligations under this Indenture, the Securities and the Security Documents; and
(ivvi) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture indentures (if any) comply with this Indenture; provided. The Successor Company (if other than the Company) shall succeed to, howeverand be substituted for, that clause the Company under this Indenture and the Securities, and in such event the Company will automatically be released and discharged from its obligations under this Indenture and the Securities. Notwithstanding the foregoing clauses (iii) shall not be applicable to and (Aiv) a of this Section 5.01, (a) any Restricted Subsidiary consolidating withmay merge, merging into consolidate or transferring amalgamate with or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary, and (so long as no Capital Stock of the Company is distributed to any Person) or (Bb) the Company merging may merge, consolidate or amalgamate with an Affiliate of the Company incorporated solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes state of this Section 5.01the United States, the District of Columbia or any territory of the United States, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. This Article 5 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and its Restricted Subsidiaries.
(b) Finance Co. may not, directly or indirectly, consolidate, amalgamate or merge with or into, or sell, assign, transfer, 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, any Person, unless:
(i) Finance Co. is the surviving person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Finance Co.) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation organized or existing under the laws of the CompanyUnited States, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power ofany state thereof, the Company under this IndentureDistrict of Columbia, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of or any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries territory thereof (Finance Co. or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assetssuch Person, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or being herein called a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company“Successor Co-Issuer”), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) the Successor Co-Issuer (if other than Finance Co.) expressly assumes all the obligations of Finance Co. under this Indenture, the Securities and the Security Documents pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall or Event of Default will have occurred and be continuing; and
(iiiiv) the Company delivers Successor Co-Issuer (if other than Finance Co.) shall have delivered or caused to be delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such Guarantee Agreement, supplemental indenture (if any, complies ) comply with this Indenture; provided, however, that this .
(c) Subject to the provisions of Section 5.01 shall not be applicable to 12.02(b) (which govern the release of a Note Guarantee upon the sale or disposition of a Restricted Subsidiary consolidating withof the Company that is a Guarantor), merging no Guarantor shall, and the Company shall not permit any Guarantor to, consolidate, amalgamate or merge with or into or transferring wind up into (whether or not such Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or part substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Guarantor, as the case may be, is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Guarantor, as the case may be) 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 (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor,” in the case of a consolidation, amalgamation, merger, winding up or sale, assignment, transfer, lease, conveyance or other disposal of all or substantially all of the properties or assets of a Guarantor) and assets the Successor Guarantor (if other than such Guarantor) expressly assumes all the obligations of such Guarantor under this Indenture, the Security Documents and, if applicable, such Guarantors’ Note Guarantee pursuant to a supplemental indenture, or (B) such sale or disposition or consolidation, amalgamation or merger is not in violation of Section 4.06; and
(ii) the Successor Guarantor (if other than such Guarantor) shall have delivered or caused to be delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Guarantor (if other than such Guarantor) will succeed to, and be substituted for, such Guarantor, under this Indenture and, such Guarantor’s Note Guarantee, and such Guarantor, will automatically be released and discharged from its obligations under this Indenture and, such Guarantor’s Note Guarantee. Notwithstanding the foregoing, (1) a Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Guarantor in another state of the United States, the District of Columbia or any territory of the United States or may convert into a limited liability company so long as the amount of Indebtedness of the Guarantor is not increased thereby and (2) a Guarantor may merge, amalgamate or consolidate with another Guarantor or an Issuer. In addition, notwithstanding the foregoing, any Guarantor may consolidate, amalgamate or merge with or into or wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to, any Restricted Subsidiary of the Company that is not Finance Co. or a Subsidiary Guarantor; provided that at the time of each such Transfer the aggregate amount of all such Transfers since the Existing First-Lien Issue Date shall not exceed 5.0% of the consolidated assets of the Company, Finance Co. and the Guarantors as shown on the most recent available balance sheet of the Company and the Restricted Subsidiaries after giving effect to each such Transfer and including all Transfers occurring from and after the Existing First-Lien Issue Date.
Appears in 3 contracts
Samples: Merger Agreement, Indenture (Verso Paper Corp.), Indenture (NewPage Holdings Inc.)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of related transactions, directly or indirectly, all or substantially all the assets of the Company and its assets Restricted Subsidiaries, taken as a whole, to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and (provided that, if B) the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trusteesuch other acknowledgments, in form satisfactory to the Trusteejoinder agreements or other documents as are required, all the obligations of the Company under the Securities and this IndentureNote Documents;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a);
(iv) or (y) the Consolidated Coverage Ratio for immediately after giving effect to such transaction, the Successor Company and its Restricted Subsidiaries would be equal shall have Adjusted Consolidated Net Tangible Assets that are not less than the Adjusted Consolidated Net Tangible Assets prior to such transaction;
(v) in the case of a conveyance, transfer or greater than such ratio for lease of all or substantially all the assets of the Company and its Restricted Subsidiaries immediately prior Subsidiaries, taken as a whole, such assets shall have been so conveyed, transferred or leased as an entirety or virtually as an entirety to one Person;
(vi) the Successor Company (if other than the Company) shall take such transactionaction (or agree to take such action) as may be reasonably necessary to cause any property or assets that constitute Collateral owned by or transferred to the Successor Company to be subject to the Parity Liens in the manner and to the extent required under the Note Documents; and
(ivvii) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, transfer or transfer lease and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause clauses (iii) and (iv) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to any such transaction solely between the Company (so long as no Capital Stock of the Company is distributed to and any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the CompanyRestricted Subsidiary. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this IndentureIndenture and the other Note Documents, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transactionobligations thereunder.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 3 contracts
Samples: Indenture (Denbury Resources Inc), Indenture (Denbury Resources Inc), Indenture (Denbury Resources Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of related transactions, directly or indirectly, all or substantially all the assets of the Company and its assets Restricted Subsidiaries, taken as a whole, to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or a limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and (provided that, if B) the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities Securities, this Indenture and this Indenturethe Registration Rights Agreement;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Company or the Successor Company would be able to Incur incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction); and
(iv) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, however that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to any such transaction solely between the Company (so long as no Capital Stock of the Company is distributed to and any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionRestricted Subsidiary. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition otherwise, in a single transaction or series of transactions) of all or substantially all of the properties and or assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Restricted Subsidiaries, would the Capital Stock of which constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall will be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 3 contracts
Samples: Indenture (CONSOL Energy Inc), Indenture (CONSOL Energy Inc), Indenture (CONSOL Energy Inc)
When Company May Merge or Transfer Assets. (a) The Neither the Parent nor the Company shall not consolidate with will, directly or merge with or into, or convey, transfer or leaseindirectly, in one a single transaction or a series of related transactions, directly (a) consolidate or indirectlymerge with or into any Person (other than a merger that satisfies the requirements of Section 5.01(a)(1) with a Wholly Owned Restricted Subsidiary solely for the purpose of changing the Parent’s or the Company’s jurisdiction of incorporation, as the case may be, to another State of the United States), or sell, lease, transfer, convey or otherwise dispose of or assign all or substantially all its of the assets toof the Parent or the Parent and the Restricted Subsidiaries (taken as a whole) or the Company or the Company and the Restricted Subsidiaries that are Subsidiaries of the Company (taken as a whole), as the case may be, to any PersonPerson or (b) adopt a Plan of Liquidation unless, unlessin either case:
(i1) either Either (Aa) the Company shall Parent or the Company, as the case may be, will be the surviving corporation or continuing Person or (Bb) the resultingPerson formed by or surviving such consolidation or merger or to which such sale, surviving lease, conveyance or transferee other disposition shall be made (or, in the case of a Plan of Liquidation, any Person to which assets are transferred) (in each of clauses (A) or (B)collectively, the “Successor CompanySuccessor”) shall (1) be is a corporation or limited liability company organized and existing under the laws of any State of the United States of America, any State thereof America or the District of Columbia (Columbia, and the Successor expressly assumes, by supplemental indenture in form and substance satisfactory to the Trustee, all of the obligations of the Company or the Parent, as the case may be, under the Securities or the Parent’s Security Guarantee, as applicable, and this Indenture; provided that, if in the case of the Company, at any time the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary co-issuer of such Person which shall be the Securities that is a corporation organized in and existing under the jurisdictions permitted by this clause (1) and a co-obligor laws of any State of the Securities) and United States of America or the District of Columbia;
(2) expressly assume, by an indenture supplemental thereto, executed immediately prior to and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction and the assumption (if applicable) of the obligations as set forth in Section 5.01(a)(1)(b) and treating the incurrence of any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction)to be incurred in connection therewith, no Default shall have occurred and be continuing;; and
(iii3) immediately after and giving pro forma effect to such transactiontransaction and the assumption (if applicable) of the obligations set forth in Section 5.01(a)(1)(b) and the incurrence of any Indebtedness to be incurred in connection therewith, either and the use of any net proceeds therefrom on a pro forma basis, (xa) the Successor Company would be able to Incur an additional Parent or the Successor, as the case may be, could incur $1.00 of Coverage additional Indebtedness pursuant to Section 4.03(a) or the Ratio Exception, (yb) the Consolidated Fixed Charge Coverage Ratio for of the Parent or the Successor Company and its Restricted Subsidiaries would be equal to or is greater than such ratio for the Company and its Restricted Subsidiaries Parent immediately prior to such transaction; and, or (c) the ratio of Consolidated Indebtedness to Consolidated Tangible Net Worth of the Parent or the Successor is less than such ratio for Parent immediately prior to such transaction. For purposes of this Section 5.01, any Indebtedness of the Successor which was not Indebtedness of the Parent or the Company, as the case may be, immediately prior to the transaction shall be deemed to have been incurred in connection with such transaction.
(ivb) No Subsidiary Guarantor may consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, unless (1) either, (a) such Subsidiary Guarantor will be the surviving or continuing Person or (b) the Company shall have delivered Person formed by or surviving any such consolidation or merger assumes, by supplemental indenture in form and substance satisfactory to the Trustee an Officers’ Certificate Trustee, all of the obligations of such Subsidiary Guarantor under the Security Guarantee of such Subsidiary Guarantor and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; providedand (2) immediately after giving effect to such transaction no Default shall have occurred and be continuing. Notwithstanding the foregoing, however, that clause (iiia) shall not be applicable to (A) a any Restricted Subsidiary consolidating with, merging (other than the Company) may merge into the Parent or transferring all or part of its properties another Restricted Subsidiary and assets to (b) the Company (so long as no Capital Stock requirements of the Company is distributed immediately preceding paragraph will not apply to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and transaction pursuant to which such Guarantor is permitted to be released from its Security Guarantee in accordance with the sole effect of reincorporating the Company in another jurisdictionprovisions described under Section 10.07. For purposes of this Section 5.01, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition otherwise, in a single transaction or series of transactions) of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Restricted Subsidiaries, would the Equity Interests of which constitute all or substantially all of the properties and assets of the Company on a consolidated basisParent or the Company, shall will be deemed to be the transfer of all or substantially all of the properties and assets of the Parent or the Company, as the case may be. The Successor Company shall be the successor to Upon any consolidation, combination or merger of the Company and shall or a Guarantor, or any transfer of all or substantially all of the assets of the Parent or the Company in accordance with the foregoing, in which the Company or such Guarantor is not the continuing obligor under the Securities or its Security Guarantee, the surviving entity formed by such consolidation or into which the Company or such Guarantor is merged or to which the conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company or such Guarantor under this Indenture, the Securities and the predecessor CompanySecurity Guarantees with the same effect as if such surviving entity had been named therein as the Company or such Guarantor and, except in the case of a conveyance, transfer or lease, shall the Company or such Guarantor, as the case may be, will be released from the obligation to pay the principal of and interest on the Securities. For all purposes Securities or in respect of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assetsSecurity Guarantee, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), whether through a merger, consolidation ’s 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized Guarantor’s other obligations and existing covenants under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of AmericaSecurities, or any State thereof or the District of Columbia, this Indenture and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiaryits Security Guarantee, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantorapplicable.
Appears in 3 contracts
Samples: Indenture (William Lyon Homes), Bridge Loan Agreement (William Lyon Homes), Indenture (William Lyon Homes)
When Company May Merge or Transfer Assets. (a) The Company shall not merge, consolidate or amalgamate with or merge with into any other Person (other than a merger of a Wholly Owned Restricted Subsidiary into the Company) or intosell, or conveytransfer, transfer or assign, lease, in one transaction convey or a series otherwise dispose of transactions, directly or indirectly, all or substantially all its assets to, Property in any Person, one transaction or series of transactions unless:
(i) either (A) a. the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (Athe “Surviving Person”) or the Surviving Person (B)if other than the Company) formed by that merger, the “Successor Company”) consolidation or amalgamation or to which that sale, transfer, assignment, lease, conveyance or disposition of all substantially all its Property is made shall (1) be a corporation or limited liability company an entity organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (Columbia, provided that, if the Successor surviving entity is not a corporation, the Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be cause a corporation organized in the jurisdictions permitted by this clause (1) and to be added as a co-obligor issuer of the Securities) and notes;
b. the Surviving Person (2if other than the Company) expressly assumeassumes, by an supplemental indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, executed and delivered to the Trustee by that Surviving Person, the due and punctual payment of the principal of, and premium, if any, and interest on, all the obligations Notes, according to their tenor, and the due and punctual performance and observance of all the Company under covenants and conditions of this Indenture to be performed by the Securities and this IndentureCompany;
(ii) c. immediately before and after giving pro forma effect to such that transaction or series of transactions on a pro-forma basis (and treating treating, for purposes of this clause (c) and clause (d) below, any Indebtedness which becomes Debt that becomes, or is anticipated to become, an obligation of the Successor Company Surviving Person or any Restricted Subsidiary as a result of such that transaction or series of transactions as having been Incurred by such Successor Company the Surviving Person or such the Restricted Subsidiary at the time of such transactionthat transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing;
(iii) d. immediately after giving pro forma effect to such transactionthat transaction or series of transactions on a pro-forma basis, either the Company or the Surviving Person, as the case may be, (xi) the Successor Company would be able to Incur an additional at least $1.00 of Coverage Indebtedness pursuant to additional Debt under clause (a) of Section 4.03(a) 4.04, or (yii) the Consolidated Fixed Charges Coverage Ratio for of the Successor Company and its Restricted Subsidiaries or the Surviving Person, as applicable, would be greater than or equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction, provided, that this clause (d) shall not be applicable to the Company merging, consolidating or amalgamating with or into an Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States so long as the amount of Debt of the Company and the Restricted Subsidiaries is not increased thereby; and
(iv) e. the Company shall have delivered deliver, or cause to be delivered, to the Trustee Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidationthe transaction and the supplemental indenture, merger or transfer and such supplemental indenture (if any) , in respect thereto comply with this Indenture; provided, however, Section and that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets conditions precedent herein provided for relating to the Company (so long transaction and the execution and delivery of a supplemental indenture, as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes of this Section 5.01applicable, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Companyhave been satisfied. The Successor Company shall be the successor to the Company and Surviving Person shall succeed to, and be substituted for, and may exercise every right and power ofpower, of the Company under this Indenture, and the predecessor CompanyCompany shall be discharged and released from all obligations hereunder and the notes; provided that the Company will not be released from the obligations to pay the principal of, except premium, if any, and interest on the notes, in the case of a leasesale, shall be released from transfer, assignment, conveyance or other disposition (unless that sale, transfer, assignment, conveyance or other disposition is of all the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, assets of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(bas an entirety) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series lease of transactions, all or substantially all of its the Company’s properties or assets to any Person unless:
in a transaction that is subject to, and that complies with the provisions of, this Section 5.01. Clauses (ic) except in the case of a Subsidiary Guarantor and (xd) that has been disposed of in its entirety to another Person (other than to the Company or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall will not be applicable apply to a Restricted Subsidiary consolidating with, merging any merger or consolidation of the Company with or into or transferring all or part one of its properties and assets to the Company or a Subsidiary GuarantorRestricted Subsidiaries for any purpose.
Appears in 2 contracts
Samples: Indenture (Tempur Sealy International, Inc.), Indenture (Tempur Sealy International, Inc.)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person (other than a Subsidiary) or convey, transfer transfer, sell or leaselease its properties and assets substantially as an entirety to any person (other than a Subsidiary), in one transaction permit any person (other than a Subsidiary) to consolidate with or merge into the Company, or permit any person (other than a series of transactionsSubsidiary) to convey, directly transfer, sell or indirectly, all or lease that person's properties and assets substantially all its assets to, any Personas an entirety to the Company, unless:
(i1) either (Aa) the Company shall be the surviving corporation person or (Bb) the resultingperson (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, surviving transfer or transferee Person (in each lease the properties and assets of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company Company substantially as an entirety is an entity organized and existing under the laws of the United States of America, America (including any State thereof or the District of Columbia (provided thatColumbia), if the Successor Company is United Kingdom, the Cayman Islands, Bermuda or any country which is, on the date of this Indenture, a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor member of the Securities) Organization of Economic Cooperation and (2) Development or the European Union and shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default Event of Default, and no event that, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv3) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer, sale or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Section 801 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging such transaction have been satisfied. The successor person formed by such consolidation or into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of which the Company is distributed merged or the successor person to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes of this Section 5.01, the sale, lease, which such conveyance, assignmenttransfer, transfer sale or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this IndentureIndenture with the same effect as if such successor had been named as the Company herein; and thereafter, and the predecessor Company, except in the case of a lease, Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 903, the Company, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.. ARTICLE NINE
Appears in 2 contracts
Samples: Indenture (Xl Capital LTD), Indenture (Xl Capital LTD)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or lease its properties and assets substantially all its assets to, as an entirety to any Personperson, unless:
(ia) either (A1) the Company shall be the surviving continuing corporation or (B2) the resultingperson (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, surviving transfer or transferee Person lease the properties and assets of the Company substantially as an entirety (in each of clauses (A) or (B), the “Successor Company”i) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided thatColumbia, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) comply indenture, complies with this Indenture; provided, however, Article 5 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be is merged or the successor person to the Company and which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a leaselease and obligations the Company may have under a supplemental indenture pursuant to Section 11.14, the Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.06, the Company, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Vishay Intertechnology Inc), Indenture (Novellus Systems Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be is a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in (if not the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2Company) expressly assume, assumes by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary of the Successor Company as a result of such transaction as having been Incurred by such the Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur at least an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a4.3(a);
(iv) or (y) the Consolidated Coverage Ratio for immediately after giving effect to such transaction, the Successor Company and its Restricted Subsidiaries would be equal to or greater will have Consolidated Net Worth in an amount which is not less than such ratio for the Consolidated Net Worth of the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivv) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and but the predecessor predecessor, the Company, except in the case of a lease, lease of all or substantially all its assets shall not be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this IndentureNotwithstanding Section 5.1(ii), Subsidiaries of (iii) and (iv), (i) any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, Subsidiary of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to may consolidate with or with, merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger into or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a another wholly-owned Subsidiary Guarantorof the Company; and (ii) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction to realize tax or other benefits.
Appears in 2 contracts
Samples: Indenture (Aurora Foods Inc /De/), Indenture (Aurora Foods Inc /Md/)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or intointo any other Person or sell, or convey, transfer or lease, in one transaction convey or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its properties and assets to, substantially to any Person, unless:
(i) either (A1) the Company shall be the surviving corporation Person or the Person formed by such consolidation or into which the Company is merged or the Person to which the properties and assets of the Company are so sold, leased, conveyed or otherwise disposed (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor CompanySurviving Person”) shall (1) be is a corporation or corporation, limited liability company company, partnership or trust organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) if the Company is not the Surviving Person, the Surviving Person expressly assumeassumes, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Event of Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, sale, lease, conveyance or transfer other disposal and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article 5, that all conditions precedent herein provided for relating to such transaction have been satisfied and such Opinion of Counsel shall also state that such supplemental indenture (if any) comply is enforceable against the Surviving Person in accordance with this Indenture; providedits terms, howeversubject to bankruptcy, that clause (iii) shall not be applicable insolvency, reorganization, moratorium or other laws relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part affecting creditors’ rights and by general principles of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionequity. For purposes of this Section 5.01the foregoing, the transfer (by sale, lease, conveyance, assignment, transfer conveyance or other disposition of all or substantially all disposal) of the properties and assets of one or more Subsidiaries of (other than to the CompanyCompany or another Subsidiary), which properties and assets, if held such assets were owned by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be Upon the successor to execution and delivery of a supplemental indenture as provided in (a)(2) above, the Company and Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such Surviving Person had been named as the Company herein; and the predecessor Companythereafter, except in the case of a lease, shall be released from the obligation to pay the principal lease of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its the Company’s assets and with respect to any Person 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 obligations the Company or an Affiliate may have under a supplemental indenture pursuant to Section 10.5, the Company shall be discharged from all obligations and covenants under this Indenture and the Securities. Subject to Section 9.6, the Company, the Trustee and the Surviving Person shall enter into a supplemental indenture to evidence the succession and substitution of such Surviving Person and such discharge and release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Amerus Group Co/Ia), Indenture (Amerus Group Co/Ia)
When Company May Merge or Transfer Assets. Section 5.1 of the Original Indenture is hereby amended and restated with respect to the Notes (but not with respect to any other series of Securities) as follows:
(a) The Company shall not consolidate with or merge with or intointo or wind up into (whether or not the Company is the surviving corporation), or sell, assign, convey, transfer transfer, lease or lease, in one transaction or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its assets toproperties and assets, in one or more related transactions, to any Person, Person unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall is a Person (1other than an individual) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof state or territory thereof, or the District of Columbia Columbia;
(provided that, if 2) the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in (if other than the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all of the obligations of the Company under the Securities Notes and this Indenturethe Indenture pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee;
(ii3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(4) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation related financing transactions, as if such transactions had occurred at the beginning of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;applicable four-quarter period,
(iii) immediately after giving pro forma effect to such transaction, either (xa) the Successor Company would be able to Incur an additional at least $1.00 of Coverage additional Indebtedness pursuant to Section 4.03(a) or 4.03, or
(yb) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater no less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv5) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, winding up or transfer disposition, and such supplemental indenture (indenture, if any) , comply with this the Indenture; provided, however, that clause .
(iiib) shall not be applicable to Notwithstanding Section 5.01(a)(3) and 5.01(a)(4),
(A1) a any Restricted Subsidiary consolidating may consolidate with, merging merge with or into or transferring transfer all or part of its properties and assets to the Company (so long as no Capital Stock of the Company Restricted Subsidiary is distributed to any Person) or Person other than the Company; provided that, in the case of a Restricted Subsidiary that merges into the Company, the Company shall not be required to comply with Section 5.01(a)(5); and
(B2) the Company merging may merge with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionstate or territory of the United States or the District of Columbia, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. For purposes of this Section 5.01, the sale, leaseassignment, conveyance, assignmenttransfer, transfer lease or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall will be deemed to be the transfer disposition of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.”
Appears in 2 contracts
Samples: Third Supplemental Indenture (Covanta Holding Corp), Second Supplemental Indenture (Covanta Holding Corp)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer transfer, sell, lease or lease, in one transaction or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its properties and assets to, to any Personperson, unless:
(ia) either (Ai) the Company shall be the surviving continuing corporation or (Bii) the resulting, surviving or transferee Person (in each if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer, sale, lease or other disposition all or substantially all of clauses (A) or (B), the “Successor Company”) shall properties and assets of the Company substantially as an entirety (1) shall be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities Notes, this Indenture and this Indenturethe Registration Rights Agreement and, to the extent applicable, otherwise comply with the provisions of Section 12.4;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer, sale, lease or transfer and other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, ARTICLE VII and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries, which, if such assets were owned by the Company, together with the assets of all of the other Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor unless such transfer is to the Company and or another Subsidiary. The successor Person formed by such consolidation or into which the Company is merged or the successor Person to which such conveyance, transfer, sale, lease or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a leaseconveyance, transfer, sale, lease or other disposition and any obligations the Company may have under a supplemental indenture, the Company shall be released discharged from all obligations and covenants under this Indenture and the obligation Notes. Subject to pay Section 11.6, the principal Company, the Trustee and the successor Person shall enter into a supplemental indenture to evidence the succession and substitution of such successor Person and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such discharge and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (CTS Corp), Indenture (Xm Satellite Radio Holdings Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be is a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in (if not the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2Company) expressly assume, assumes by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary of the Successor Company as a result of such transaction as having been Incurred by such the Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur at least an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a4.3(a);
(iv) or (y) the Consolidated Coverage Ratio for immediately after giving effect to such transaction, the Successor Company and its Restricted Subsidiaries would be equal to or greater will have Consolidated Net Worth in an amount which is not less than such ratio for the Consolidated Net Worth of the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivv) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and but the predecessor predecessor, the Company, except in the case of a lease, lease of all or substantially all its assets shall not be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this IndentureNotwithstanding Section 5.1(ii) and 5.1(iii), Subsidiaries of (i) any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, Subsidiary of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to may consolidate with or with, merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger into or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a another wholly-owned Subsidiary Guarantorof the Company; and (ii) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction to realize tax or other benefits.
Appears in 2 contracts
Samples: Indenture (Windy Hill Pet Food Co Inc), Indenture (MBW Foods Inc)
When Company May Merge or Transfer Assets. (a) The Company Holdings shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i1) either (A) the Company Holdings shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor CompanyHoldings”) shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and Successor Holdings (provided that, if the Successor Company is a limited liability company, then there not Holdings) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of Holdings under its Guarantee of the Securities and this Indenture;
(2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of Successor Holdings or any Subsidiary as a result of such transaction as having been Incurred by Successor Holdings or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(3) immediately after giving pro forma effect to such transaction, Successor Holdings would (a) be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (b) have had a Consolidated Coverage Ratio greater than the Consolidated Coverage Ratio immediately prior to such transaction and without giving pro forma effect thereto; and
(4) Holdings shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture.
(b) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of related transactions, directly or indirectly, all or substantially all of its assets in one or a series of related transactions to, any Person, unless:
(1) the surviving corporation or the resulting, surviving or transferee Person (the “Successor Company”) shall be a corporation, limited liability corporation or limited partnership organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Company) shall expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture; and if the Successor Company shall be a limited liability corporation or limited partnership, a Wholly Owned Subsidiary of the Successor Company that is a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia shall expressly assume, on a joint and several basis with the Successor Company, by an indenture supplemental thereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Successor Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such Subsidiary at the time of such transaction), ) no Default shall have occurred and be continuing;
(iii3) immediately after giving pro forma effect to such transaction, either Holdings would (xa) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (yb) have had a Consolidated Coverage Ratio greater than the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transactiontransaction and without giving pro forma effect thereto; and
(iv4) the Company shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Holdings or the Company, which properties and assets, if held by Holdings or the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of Holdings or the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of Holdings or the Company, as applicable. The For the avoidance of doubt, any disposition of the Ethanol Assets or any disposition of shares of Capital Stock of the Ethanol Subsidiaries shall not constitute the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of Holdings, the Company or the Restricted Subsidiaries. Successor Holdings or the Successor Company shall be the successor to Holdings or the Company Company, as applicable, and shall succeed to, and be substituted for, and may exercise every right and power of, Holdings or the Company Company, as applicable, under this Indenture, Indenture and the predecessor Holdings or the Company, as applicable, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the SecuritiesSecurities and Guarantees, as applicable. For all purposes of this Indenture, Subsidiaries of any Successor Company Holdings shall, upon any transaction subject to this Section 5.01covenant, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(bc) The Company Holdings shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all of its assets to any Person unless:
: (i1) 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 an Affiliate of the CompanyHoldings), 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 Holdings provides an Officer’s Certificate to the Trustee to the effect that Holdings shall comply with its obligations under Section 4.06 in respect of such disposition, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreementsupplemental indenture, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
; (ii2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
and (iii3) the Company Holdings delivers to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreementsupplemental indenture, if any, complies with this Indenture; provided, however, that . Notwithstanding this Section 5.01 shall not be applicable to a 5.01(c), (1) any Restricted Subsidiary consolidating may consolidate with, merging merge into or transferring transfer all or part of its properties and assets to Holdings, the Company or any Subsidiary Guarantor and (2) Holdings or the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating Holdings or the Company in a Subsidiary Guarantorjurisdiction within the United States of America, any State thereof or the District of Columbia.
Appears in 2 contracts
Samples: Indenture (Murphy USA Inc.), Indenture (Murphy USA Inc.)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or lease its properties and assets substantially all its assets to, as an entirety to any Personperson, unless:
(ia) either (A1) the Company shall be the surviving continuing corporation or (B2) the resultingperson (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, surviving transfer or transferee Person lease the properties and assets of the Company substantially as an entirety (in each of clauses (A) or (B), the “Successor Company”i) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be is merged or the successor person to the Company and which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a leaselease and obligations the Company may have under a supplemental indenture pursuant to Section 10.14, the Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.6, the Company, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii3) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction); and
(iv4) the Company shall have delivered to the Trustee Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this IndentureIndenture and that all conditions precedent have been complied with; provided, however, that clause (iii3) shall will not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person unless:
(i1) 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 or an Affiliate of the Company), whether through a merger, consolidation or sale of Capital Stock or assets or (y) thatassets, as a result 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 the disposition of all or a portion of its Capital Stock, ceases to be a Subsidiarysuch disposition, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii3) the Company delivers to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (International Wire Group Inc), Indenture (International Wire Rome Operations, Inc.)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or intointo or wind up into (whether or not the Company is the surviving corporation), or conveysell, transfer or assign, transfer, lease, in one transaction convey or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
(i) either (A) the Company shall be is the surviving corporation or the Person formed by or surviving any such consolidation or merger (B) if other than the resulting, surviving or transferee Person (in each of clauses (ACompany) or (B)to which such sale, the “Successor Company”) assignment, transfer, lease, conveyance or other disposition shall (1) be have been made is a corporation corporation, partnership or limited liability company organized and or existing under the laws of the United States of AmericaStates, any State thereof or state thereof, the District of Columbia Columbia, or any territory thereof (provided thatthe Company or such Person, if as the case may be, being herein called the "Successor Company");
(ii) the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in (if other than the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all the obligations of the Company under this Indenture and the Securities and this Indenturepursuant to supplemental indentures hereto or other documents or instruments in form reasonably satisfactory to the Trustee;
(iiiii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary of its Restricted Subsidiaries as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transaction), ) no Default or Event of Default shall have occurred and be continuing;
(iiiiv) 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
(xA) the Successor Company would be able permitted to Incur an additional at least $1.00 of Coverage additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a) or or
(yB) the Consolidated Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indentures hereto confirmed that its Senior Subordinated Guarantee shall apply to such Person's obligations under this Indenture and the Securities; and
(ivvi) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture indentures (if any) comply with this Indenture; provided. The Successor Company shall succeed to, howeverand be substituted for, that clause the Company under this Indenture and the Securities. Notwithstanding the foregoing clauses (iii) shall not be applicable to and (Aiv), (1) a any Restricted Subsidiary consolidating may consolidate with, merging merge into or transferring transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary and (so long as no Capital Stock of the Company is distributed to any Person) or (B2) the Company merging may merge with an Affiliate of the Company incorporated solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes state of this the United States so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.
(b) Subject to the provisions of Section 5.0111.02(b) (which govern the release of a Senior Subordinated Guarantee upon the sale or disposition of a Restricted Subsidiary that is a Guarantor), no Guarantor shall, and the saleCompany shall not permit any Guarantor to, consolidate or merge with or into or wind up into (whether or not such Guarantor is the surviving corporation), or sell, assign, transfer, lease, 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 the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed related transactions to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person unless:
(i) except in such Guarantor is the case of a Subsidiary Guarantor surviving corporation or the Person formed by or surviving any such consolidation or merger (x) that has been disposed of in its entirety to another Person (if other than such Guarantor) or to the Company which such sale, assignment, transfer, lease, conveyance or an Affiliate of the Company)other disposition shall have been made is a corporation, whether through a merger, consolidation partnership or sale of Capital Stock limited liability company organized 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of AmericaStates, or any State thereof or state thereof, the District of Columbia, and or any territory thereof (such Person shall Guarantor or such Person, as the case may be, being herein called the "Successor Guarantor");
(ii) the Successor Guarantor (if other than such Guarantor) expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, assumes all the obligations of such Subsidiary, if any, Guarantor under its Subsidiary Guaranteethis Indenture and such Guarantor's Senior Subordinated Guarantee pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(iiiii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving Successor Guarantor or transferee Person any of its Subsidiaries as a result of such transaction as having been issued Incurred by the Successor Guarantor or such Person Subsidiary at the time of such transaction), ) no Default or Event of Default shall have occurred and be continuing; and
(iiiiv) the Company delivers such Guarantor shall have delivered or caused to be delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, supplemental indentures (if any, complies ) comply with this Indenture; provided. The Successor Guarantor shall succeed to, howeverand be substituted for, that such Guarantor under this Section 5.01 shall Indenture and such Guarantor's Senior Subordinated Guarantee. Notwithstanding the foregoing, a Guarantor may merge with an Affiliate incorporated solely for the purpose of reincorporating such Guarantor in another state of the United States so long as the amount of Indebtedness of the Guarantor is not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantorincreased thereby.
Appears in 2 contracts
Samples: Indenture (TRW Automotive Inc), Indenture (TRW Automotive Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to any person, nor will the Company (so long as no Capital Stock permit any Subsidiary to enter into any such transaction or series of transactions if such transaction or series of transactions, in the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company aggregate, would result in another jurisdiction. For purposes of this Section 5.01, the a sale, lease, conveyance, assignment, transfer transfer, lease or other disposition of all or substantially all of the properties and assets of the Company and its Subsidiaries on a consolidated basis to any other person or persons, unless:
(a) either (1) the Company or such subsidiary shall be the surviving corporation or (2) the person (if other than the Company) formed by such consolidation or into which the Company or such Subsidiary is merged or the person which acquires by conveyance, transfer or lease the properties and assets of the Company or such Subsidiary substantially as an entirety (i) shall be 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 indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company or such Subsidiary under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been satisfied. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be or the applicable Subsidiary is merged or the successor person to the Company and 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 or the applicable Subsidiary under this Indenture, Indenture with the same effect as if such successor had been named as the Company or the applicable Subsidiary herein; and the predecessor Companythereafter, except in the case of a leaselease and any obligations the Company or the applicable Subsidiary may have under a supplemental indenture pursuant to Section 11.14, the Company or the applicable Subsidiary shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.06, the Company, the applicable Subsidiary, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, release of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company the applicable Subsidiary. A Guarantor shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, into any Person or convey, transfer or lease, in one transaction or a series of transactions, all or lease its properties and assets substantially all of its assets to any Person unless:
(i) except in the case of a Subsidiary Guarantor (x) that has been disposed of in its entirety as an entity to another Person (other than to unless the Company or an Affiliate surviving Person assumes the obligations of such Guarantor and the Company), whether through surviving Person is 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person corporation organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of AmericaStates, or any State state thereof or the District of Columbia, and except if all of the assets or all of the common stock of such Person shall expressly assume, by Guarantor is sold to a Guarantee Agreementnon-affiliate of the Company, in a form satisfactory to which case the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantoris released.
Appears in 2 contracts
Samples: Indenture (Mesa Air Group Inc), Indenture (Mesa Air Group Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all of its properties and assets to, to any Personperson, unless:
(a) the person formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, transfer or lease the properties and assets of the Company substantially as an entirety (i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) (if other than the Company) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be is merged or the successor person to the Company and which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a leaselease and any obligations the Company may have under a supplemental indenture pursuant to Section 11.14, the Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.06, the Company, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (TJX Companies Inc /De/), Indenture (Neuberger Berman Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i1) either (Ax) the Company shall be the surviving corporation or (By) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided thatColumbia, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations Obligations of the Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation Obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii3) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be have been able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction); and
(iv4) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii3) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company (if not the Company) shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) unless immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Rotech Healthcare Inc), Indenture (Rotech Healthcare Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such the Successor Company 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 pro forma effect to such transaction, either (x) the Successor Company would be able to Incur incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction4.3(a); and
(iv) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, transfer or transfer lease and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and but the predecessor predecessor, the Company, except in the case of a lease, lease of all or substantially all its assets shall not be released from the obligation to pay the principal of and interest on the Securities. For all purposes Notwithstanding clauses (ii) and (iii) of the first sentence of this Indenture, Subsidiaries of Section 5.1: (1) any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, Subsidiary of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to may consolidate with or with, merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger into or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company, and (2) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction to realize tax or a Subsidiary Guarantorother benefits.
Appears in 2 contracts
Samples: Indenture (International Wire Group Inc), Indenture (Wire Harness Industries Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or intointo (whether or not the Company is the surviving corporation), or conveysell, transfer or assign, transfer, lease, in one transaction convey or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its properties or assets in one or more related transactions to, any Person, another Person unless:
(i) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is organized or existing under the laws of the United States, any state thereof or the District of Columbia;
(ii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee;
(iii) except in the case of a merger or consolidation of the Company with or into a Wholly-Owned Restricted Subsidiary of the Company, immediately before and after such transaction no Default has occurred and is continuing; and
(iv) except in the case of a merger or consolidation of the Company with or into a Wholly-Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the end of the applicable fiscal quarter, either (A) the Company shall be the surviving corporation permitted to incur at least $1.00 of additional Ratio Indebtedness pursuant to Section 4.03(a) or (B) have a Fixed Charge Coverage Ratio no less than that of the Company at such time without giving such pro forma effect thereto. Upon the consummation of any transaction effected in accordance with this Section 5.01(a), if the Company is not the continuing Person, the resulting, surviving or transferee Person (in each of clauses (A) or (B)shall succeed to, and be substituted for, and may exercise every right and power of, the “Successor Company under this Indenture and the Notes with the same effect as if such successor Person had been named as the Company in this Indenture. Upon such substitution the Company”, except in the case of a lease, shall be released from its obligations under this Indenture and the Notes.
(b) Each Guarantor (other than any Guarantor whose Notes Guarantee is to be released in accordance with the terms of the Notes Guarantee and this Indenture in connection with any transaction complying with Section 4.06) shall not, and the Company shall not cause or permit any such Guarantor to, consolidate with or merge with or into any Person other than the Company or another Guarantor unless:
(1i) be a corporation the Person formed by or limited liability company surviving any such consolidation or merger or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is organized and existing under the laws of the United States of AmericaStates, any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this IndentureColumbia;
(ii) immediately after giving pro forma effect the Person formed by or surviving any such consolidation or merger or to which such transaction (and treating any Indebtedness which becomes an obligation sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all of the Successor Company or any Subsidiary as a result obligations of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuingapplicable Guarantor under its Notes Guarantee;
(iii) immediately before and after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company no Default has occurred and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transactionis continuing; and
(iv) except in the case of a merger or consolidation of a Guarantor with or into a Wholly-Owned Restricted Subsidiary of the Company, immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the Company could satisfy Section 5.01(a)(iv).
(c) The following additional condition shall apply to each transaction set forth in Sections 5.01(a) and 5.01(b): the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidationtransaction and, merger or transfer and if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) comply with the applicable provisions of this Indenture; Indenture and, with respect to the Officers’ Certificate only, that all conditions precedent in this Indenture relating to such transaction have been satisfied and, with respect to the Opinion of Counsel only, that such supplemental indenture is enforceable, subject to customary qualifications. provided, however, that clause clauses (iii) and (iv) of each of Sections 5.01(a) and 5.01(b) shall not be applicable to (A) the Company or a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company or such Restricted Subsidiary in another permitted jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Credit Acceptance Corp), Indenture (Credit Acceptance Corp)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or lease its properties and assets substantially all its assets to, as an entirety to any Personperson, unless:
(ia) either (A1) the Company shall be the surviving continuing corporation or (B2) the resultingperson (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, surviving transfer or transferee Person lease the properties and assets of the Company substantially as an entirety (in each of clauses (A) or (B), the “Successor Company”i) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided Columbia, provided, however, that the condition contained in this section 5.01(a)(2)(i) shall not apply if independent counsel experienced in such matters delivers an opinion to the Company concluding that, under then existing laws, there would be no adverse tax consequences to the Holders if the Successor Company is a limited liability companythis condition were not satisfied, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause all conditions precedent herein provided for relating to such transaction have been satisfied.
(iiid) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets the Guarantor has delivered to the Company (so long as no Capital Stock Trustee a Guarantor's Officers' Certificate and an opinion of counsel, each stating that the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose Guarantor's obligations hereunder shall remain in full force and with the sole effect of reincorporating the Company in another jurisdictionthereafter. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be is merged or the successor person to the Company and which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a leaselease and obligations the Company may have under a supplemental indenture pursuant to Section 11.15, the Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.06, the Company, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Countrywide Home Loans Inc), Indenture (Countrywide Financial Corp)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or lease its properties and assets substantially all its assets to, as an entirety to any Personperson, unless:
(ia) either (A1) the Company shall be the surviving continuing corporation or (B2) the resultingperson (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, surviving transfer or transferee Person lease the properties and assets of the Company substantially as an entirety (in each of clauses (A) or (B), the “Successor Company”i) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be is merged or the successor person to the Company and which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a leaselease and obligations the Company may have under a supplemental indenture pursuant to Section 11.14, the Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.06, the Company, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Universal Health Services Inc), Indenture (Idec Pharmaceuticals Corp / De)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactionsnot, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not the Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
(i) either (A) the Company shall be is the surviving corporation Person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (B) if other than the resulting, surviving or transferee Person (in each of clauses (ACompany) or (B)to which such sale, the “Successor Company”) assignment, transfer, lease, conveyance or other disposition shall (1) be have been made is a corporation corporation, partnership or limited liability company organized and or existing under the laws of the United States of AmericaStates, any State thereof or state thereof, the District of Columbia Columbia, or any territory thereof (the Company or such Person, as the case may be, being herein called the “Successor Company”); provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized that in the jurisdictions permitted by this clause (1) and case where the surviving Person is not a corporation, a co-obligor of the SecuritiesNotes is a corporation;
(ii) and the Successor Company (2if other than the Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all the obligations of the Company under this Indenture and the Securities and this IndentureNotes pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(iiiii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which that becomes an obligation of the Successor Company or any Subsidiary of the Restricted Subsidiaries as a result of such transaction as having been Incurred by such the Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iiiiv) the Company delivers shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, supplemental indentures (if any, complies ) comply with this Indenture; provided. The Successor Company (if other than the Company) shall succeed to, howeverand be substituted for, that the Company under this Indenture and the Notes, and in such event the Company will automatically be released and discharged from their obligations under this Indenture and the Notes. Notwithstanding the foregoing clause (iii) of this Section 5.01 shall not be applicable 5.01, (x) subject to a the restrictions on Note Guarantors described in Section 5.0l(b), any Restricted Subsidiary consolidating withmay merge, merging into consolidate or transferring amalgamate with or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary, and (y) the Company may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating the Company in another state of the United States, the District of Columbia or any territory of the United States or may convert into a limited liability company, so long as the amount of Indebtedness of the Company and the Restricted Subsidiaries is not increased thereby. This Article V will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 12.02(b) (which govern the release of a Note Guarantee upon the sale or disposition of a Restricted Subsidiary that is a Note Guarantor), each Note Guarantor shall not, and the Company shall not permit any Note Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Note Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Note Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Note Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Note Guarantor or such Person, as the case may be, being herein called the “Successor Note Guarantor”) and the Successor Note Guarantor (if other than such Note Guarantor) expressly assumes all the obligations of such Note Guarantor under this Indenture and such Note Guarantor’s Note Guarantee pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee, or (b) such sale or disposition or consolidation, amalgamation or merger is not in violation of Section 4.06; and
(ii) the Successor Note Guarantor (if other than such Note Guarantor) shall have delivered or caused to be delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Note Guarantor (if other than such Note Guarantor) will succeed to, and be substituted for, such Note Guarantor under this Indenture and such Note Guarantor’s Note Guarantee, and such Note Guarantor will automatically be released and discharged from its obligations under this Indenture and such Note Guarantor’s Note Guarantee. Notwithstanding the foregoing, (1) a Note Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Note Guarantor in another state of the United States, the District of Columbia or any territory of the United States so long as the amount of Indebtedness of the Note Guarantor is not increased thereby and (2) a Note Guarantor may merge, amalgamate or consolidate with another Note Guarantor or the Company. In addition, notwithstanding the foregoing, any Note Guarantor may consolidate, amalgamate or merge with or into or wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to, (x) the Company or any Note Guarantor or (y) any Restricted Subsidiary that is not a Note Guarantor; provided that at the time of each such Transfer pursuant to clause (y) the aggregate amount of all such Transfers since the Issue Date shall not exceed 5.0% of Total Assets as shown on the most recent available balance sheet of the Company and the Restricted Subsidiaries after giving effect to each such Transfer and including all Transfers occurring from and after the Issue Date.
Appears in 2 contracts
Samples: Indenture (Momentive Performance Materials Inc.), Indenture (Momentive Performance Materials Inc.)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other Person or convey, transfer transfer, sell, lease or lease, in one transaction or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its properties and assets to, to any Person, unless:
(ia) either (A1) the Company shall be the surviving continuing corporation or (B2) the resulting, surviving or transferee Person (in each if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer or lease the all or substantially all of clauses the properties and assets of the Company (A) or (B), the “Successor Company”i) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default Event of Default, and no event that, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article VII and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging such transaction have been satisfied. The successor Person formed by such consolidation or into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of which the Company is distributed merged or the successor Person to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes of this Section 5.01, the sale, lease, which such conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this IndentureIndenture with the same effect as if such successor had been named as the Company herein; and thereafter, and the predecessor Company, except in the case of a lease, Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 11.6, the Company, the Trustee and the successor Person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor Person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Purchase Agreement (Integrated Electrical Services Inc), Indenture (Integrated Electrical Services Inc)
When Company May Merge or Transfer Assets. (a) The Company shall may not (other than pursuant to the Merger): (1) consolidate with or merge with or intointo another Person (whether or not the Company is the surviving corporation); or (2) sell, assign, transfer, convey or convey, transfer or lease, in one transaction or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its assets toproperties or assets, any Personin one or more related transactions, to another Person unless:
(i1) either (Aa) the Company shall be is the surviving corporation or (Bb) the resulting, Person formed by or surviving any such consolidation or transferee Person merger (in each of clauses (Aif other than the Company) or (B)to which such sale, the “Successor Company”) assignment, transfer, conveyance or other disposition shall (1) be have been made is a corporation or corporation, limited liability company or partnership organized and or existing under the laws of the United States of AmericaStates, any State thereof or the District of Columbia (provided thatColumbia; provided, however, that if the Successor Company such Person is a limited liability companycompany or partnership, then there shall be a Restricted corporate Wholly-Owned Subsidiary of such Person which shall be a corporation organized in under the jurisdictions permitted by this clause (1) and laws of the United States, any state thereof or the District of Columbia becomes a co-obligor issuer of the Securities) and Notes in connection therewith;
(2) expressly assumethe entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, by an indenture supplemental theretoassignment, executed and delivered to the Trusteetransfer, in form satisfactory to the Trustee, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Securities Notes and this IndentureIndenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee;
(ii3) immediately after such transaction no Default exists;
(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, conveyance or other disposition shall have been made will, after giving pro forma effect to thereto as if such transaction (and treating any Indebtedness which becomes an obligation had occurred at the beginning of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary applicable four-quarter period, be permitted to incur at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional least $1.00 of Coverage additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a) of this Indenture or (yb) the Consolidated Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for of the Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made, after giving effect to the transaction and its Restricted Subsidiaries any related financings, would not be less than the Fixed Charge Coverage Ratio of the Company immediately prior to such transaction; and
(iv5) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that . The preceding clause (iii4) shall will not be applicable to prohibit:
(Aa) a merger between the Company and a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to between Restricted Subsidiaries; or
(b) a merger between the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with and an Affiliate of the Company incorporated solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionstate of the United States. For purposes of this Section 5.01In addition, the saleCompany may not, leasedirectly or indirectly, conveyance, assignment, transfer or other disposition of lease all or substantially all of the its properties and assets of or assets, in one or more Subsidiaries related transactions, to any other Person. This Section 5.01 will not be applicable to a sale, assignment, transfer, conveyance or other disposition of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all assets between or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to among the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case any of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become its Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transactionSubsidiaries.
(b) The Company shall will not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person unless:
(i1) 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 or an Affiliate of the Company), 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 of this Indenture, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Guaranty Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary GuaranteeGuaranty;
(ii2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii3) the Company delivers to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Guaranty Agreement, if any, complies with this Indenture; provided, however, . The preceding clause (2) will not prohibit any Subsidiary Guarantor that this Section 5.01 shall not be applicable to is a Restricted limited liability company from merging with an Affiliate solely for the purpose of reincorporating such Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or Guarantor as a Subsidiary Guarantor.corporation. ARTICLE SIX
Appears in 2 contracts
Samples: Indenture (SHG Holding Solutions Inc), Indenture (Leasehold Resource Group LLC)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such 57 EXHIBIT 4.1 Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and);
(iv) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause and
(iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (Bv) the Company merging with shall have delivered to the Trustee an Affiliate Opinion of Counsel to the Company solely effect that the Holders will not recognize income, gain or loss for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For Federal income tax 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 Company, which properties and assets, if held by the Company instead as a result of such Subsidiariestransaction and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would constitute all or substantially all of have been the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Companycase if such transaction had not occurred. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and but the predecessor Company, except Company in the case of a leaseconveyance, transfer or lease shall not be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Aqua Chem Inc), Indenture (Aqua Chem Inc)
When Company May Merge or Transfer Assets. (a) The Company shall will not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities Notes and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii3) [Reserved];
(4) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur shall have Consolidated Net Worth in an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) amount that is not less than the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for Net Worth of the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv5) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause clauses (iii3) shall and (4) will not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely principally for the purpose and with the sole principal effect of reincorporating the Company in another jurisdictionjurisdiction and not for evading the foregoing limitations. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transactionNotes.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Wolverine Tube Inc), Indenture (Wt Holding Company, Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not merge, consolidate or amalgamate with or merge with into any other Person (other than a merger of a Wholly Owned Restricted Subsidiary into the Company) or intosell, or conveytransfer, transfer or assign, lease, in one transaction convey or a series otherwise dispose of transactions, directly or indirectly, all or substantially all its assets to, Property in any Person, one transaction or series of transactions unless:
(i) either (Aa) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (Athe “Surviving Person”) or the Surviving Person (B)if other than the Company) formed by that merger, the “Successor Company”) consolidation or amalgamation or to which that sale, transfer, assignment, lease, conveyance or disposition of all substantially all its Property is made shall (1) be a corporation or limited liability company an entity organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (Columbia, provided that, if the Successor surviving entity is not a corporation, the Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be cause a corporation organized in the jurisdictions permitted by this clause (1) and to be added as a co-obligor issuer of the Securitiesnotes;
(b) and the Surviving Person (2if other than the Company) expressly assumeassumes, by an supplemental indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, executed and delivered to the Trustee by that Surviving Person, the due and punctual payment of the principal of, and premium, if any, and interest on, all the obligations Notes, according to their tenor, and the due and punctual performance and observance of all the Company under covenants and conditions of this Indenture and the Securities and this IndentureRegistration Rights Agreement to be performed by the Company;
(iic) immediately before and after giving pro forma effect to such that transaction or series of transactions on a pro-forma basis (and treating treating, for purposes of this clause (c) and clause (d) below, any Indebtedness which becomes Debt that becomes, or is anticipated to become, an obligation of the Successor Company Surviving Person or any Restricted Subsidiary as a result of such that transaction or series of transactions as having been Incurred by such Successor Company the Surviving Person or such the Restricted Subsidiary at the time of such transactionthat transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing;
(iiid) immediately after giving pro forma effect to such transactionthat transaction or series of transactions on a pro-forma basis, either the Company or the Surviving Person, as the case may be, (xi) the Successor Company would be able to Incur an additional at least $1.00 of Coverage Indebtedness pursuant to additional Debt under clause (a) of Section 4.03(a) 4.04, or (yii) the Consolidated Fixed Charges Coverage Ratio for of the Successor Company and its Restricted Subsidiaries or the Surviving Person, as applicable, would be greater than or equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction, provided, that this clause (d) shall not be applicable to the Company merging, consolidating or amalgamating with or into an Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States so long as the amount of Debt of the Company and the Restricted Subsidiaries is not increased thereby; and
(ive) the Company shall have delivered deliver, or cause to be delivered, to the Trustee Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidationthe transaction and the supplemental indenture, merger or transfer and such supplemental indenture (if any) , in respect thereto comply with this Indenture; provided, however, Section and that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets conditions precedent herein provided for relating to the Company (so long transaction and the execution and delivery of a supplemental indenture, as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes of this Section 5.01applicable, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Companyhave been satisfied. The Successor Company shall be the successor to the Company and Surviving Person shall succeed to, and be substituted for, and may exercise every right and power ofpower, of the Company under this Indenture, and the predecessor CompanyCompany shall be discharged and released from all obligations hereunder and the notes; provided that the Company will not be released from the obligations to pay the principal of, except premium, if any, and interest on the notes, in the case of a leasesale, shall be released from transfer, assignment, conveyance or other disposition (unless that sale, transfer, assignment, conveyance or other disposition is of all the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, assets of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(bas an entirety) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series lease of transactions, all or substantially all of its the Company’s properties or assets to any Person unless:
in a transaction that is subject to, and that complies with the provisions of, this Section 5.01. Clauses (ic) except in the case of a Subsidiary Guarantor and (xd) that has been disposed of in its entirety to another Person (other than to the Company or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall will not be applicable apply to a Restricted Subsidiary consolidating with, merging any merger or consolidation of the Company with or into or transferring all or part one of its properties and assets to the Company or a Subsidiary GuarantorRestricted Subsidiaries for any purpose.
Appears in 2 contracts
Samples: Indenture (Tempur Sealy International, Inc.), Indenture (Tempur Sealy International, Inc.)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or intointo (whether or not the Company is the surviving corporation), or conveysell, transfer or assign, transfer, lease, in one transaction convey or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its properties or assets in one or more related transactions to, any Person, another Person unless:
(i) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is organized or existing under the laws of the United States, any state thereof or the District of Columbia;
(ii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee;
(iii) except in the case of a merger or consolidation of the Company with or into a Wholly-Owned Restricted Subsidiary of the Company, immediately before and after such transaction no Default has occurred and is continuing; and
(iv) except in the case of a merger or consolidation of the Company with or into a Wholly-Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the end of the applicable fiscal quarter, either (A) the Company shall be the surviving corporation permitted to incur at least $1.00 of additional Ratio Indebtedness pursuant to Section 4.03(a) or (B) have a Fixed Charge Coverage Ratio no less than that of the Company at such time without giving such pro forma effect thereto. Upon the consummation of any transaction effected in accordance with this Section 5.01(a), if the Company is not the continuing Person, the resulting, surviving or transferee Person (in each of clauses (A) or (B)shall succeed to, and be substituted for, and may exercise every right and power of, the “Successor Company under this Indenture and the Notes with the same effect as if such successor Person had been named as the Company in this Indenture. Upon such substitution the Company”, except in the case of a lease, shall be released from its obligations under this Indenture and the Notes.
(b) Each Guarantor (other than any Guarantor whose Notes Guarantee is to be released in accordance with the terms of the Notes Guarantee and this Indenture in connection with any transaction complying with Section 4.06) shall not, and the Company shall not cause or permit any such Guarantor to, consolidate with or merge with or into any Person other than the Company or another Guarantor unless:
(1i) be a corporation the Person formed by or limited liability company surviving any such consolidation or merger or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is organized and existing under the laws of the United States of AmericaStates, any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this IndentureColumbia;
(ii) immediately after giving pro forma effect the Person formed by or surviving any such consolidation or merger or to which such transaction (and treating any Indebtedness which becomes an obligation sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all of the Successor Company or any Subsidiary as a result obligations of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuingapplicable Guarantor under its Notes Guarantee;
(iii) immediately before and after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company no Default has occurred and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transactionis continuing; and
(iv) except in the case of a merger or consolidation of a Guarantor with or into a Wholly-Owned Restricted Subsidiary of the Company, immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the Company could satisfy Section 5.01(a)(iv).
(c) The following additional condition shall apply to each transaction set forth in Sections 5.01(a) and 5.01(b): the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidationtransaction and, merger or transfer and if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) comply with the applicable provisions of this Indenture; providedIndenture and, howeverwith respect to the Officers’ Certificate only, that clause all conditions precedent in this Indenture relating to such transaction have been satisfied and, with respect to the Opinion of Counsel only, that such supplemental indenture is enforceable, subject to customary qualifications.
(d) Clauses (iii) and (iv) of each of Sections 5.01(a) and 5.01(b) shall not be applicable to (A) the Company or a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company or such Restricted Subsidiary in another permitted jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Credit Acceptance Corp), Indenture (Credit Acceptance Corp)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or intointo or wind up into (whether or not the Company is the surviving corporation), or conveysell, transfer or assign, transfer, lease, in one transaction convey or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
(i) either (A) the Company shall be is the surviving corporation or the Person formed by or surviving any such consolidation or merger (B) if other than the resulting, surviving or transferee Person (in each of clauses (ACompany) or (B)to which such sale, the “Successor Company”) assignment, transfer, lease, conveyance or other disposition shall (1) be have been made is a corporation corporation, partnership or limited liability company organized and or existing under the laws of the United States of AmericaStates, any State thereof or state thereof, the District of Columbia Columbia, or any territory thereof (provided thatthe Company or such Person, if as the case may be, being herein called the "Successor Company");
(ii) the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in (if other than the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all the obligations of the Company under this Indenture and the Securities and this Indenturepursuant to supplemental indentures hereto or other documents or instruments in form reasonably satisfactory to the Trustee;
(iiiii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary of its Restricted Subsidiaries as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transaction), ) no Default or Event of Default shall have occurred and be continuing;
(iiiiv) 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
(xA) the Successor Company would be able permitted to Incur an additional at least $1.00 of Coverage additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a) or or
(yB) the Consolidated Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indentures hereto confirmed that its Senior Subordinated Guarantee shall apply to such Person's obligations under this Indenture and the Securities; and
(ivvi) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture indentures (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of Notwithstanding the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
foregoing clauses (iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel(iv), each stating that such consolidation(1) any Restricted Subsidiary may consolidate with, merger merge into or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or to another Restricted Subsidiary and (2) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another state of the United States so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.
(b) Subject to the provisions of Section 11.02(b) (which govern the release of a Senior Subordinated Guarantee upon the sale or disposition of a Restricted Subsidiary that is a Guarantor.), no Guarantor shall, and the Company shall not permit any Guarantor to, consolidate or merge with or into or wind up into (whether or not such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition 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 (such Guarantor or such Person, as the case may be, being herein called the "Successor Guarantor");
(ii) the Successor Guarantor (if other than such Guarantor) expressly assumes all the obligations of such Guarantor under this Indenture and such Guarantor's Senior Subordinated Guarantee pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
Appears in 2 contracts
Samples: Indenture (TRW Automotive Inc), Indenture (TRW Automotive Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer or leaselease all or substantially all of its properties and assets to any person, in one nor will the Company permit any Subsidiary to enter into any such transaction or a series of transactions if such transaction or series of transactions, directly in the aggregate, would result in a sale, assignment, transfer, lease or indirectly, other disposition of all or substantially all of the properties and assets of the Company and its assets to, Subsidiaries on a consolidated basis to any Personother person or persons, unless:
(ia) either (A1) the Company or such subsidiary shall be the surviving corporation or (B2) the resultingperson (if other than the Company) formed by such consolidation or into which the Company or such Subsidiary is merged or the person which acquires by conveyance, surviving transfer or transferee Person lease the properties and assets of the Company or such Subsidiary substantially as an entirety (in each of clauses (A) or (B), the “Successor Company”i) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State state thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company or such Subsidiary under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be or the applicable Subsidiary is merged or the successor person to the Company and 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 or the applicable Subsidiary under this Indenture, Indenture with the same effect as if such successor had been named as the Company or the applicable Subsidiary herein; and the predecessor Companythereafter, except in the case of a leaselease and any obligations the Company or the applicable Subsidiary may have under a supplemental indenture pursuant to Section 11.14, the Company or the applicable Subsidiary shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.06, the Company, the applicable Subsidiary, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, release of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transactionthe applicable Subsidiary.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (CBRL Group Inc), Indenture (CBRL Group Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all of its properties and assets to, to any Personperson, unless:
(ia) either (A1) the Company shall be the surviving continuing corporation or (B2) the resultingperson (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, surviving transfer or transferee Person lease the properties and assets of the Company substantially as an entirety (in each of clauses (A) or (B), the “Successor Company”i) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or 37 44 another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be is merged or the successor person to the Company and which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a leaselease and any obligations the Company may have under a supplemental indenture pursuant to Section 11.14, the Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.06, the Company, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (SPX Corp), Indenture (SPX Corp)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactionsnot, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not the Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
(i) either (A) the Company shall be is the surviving corporation Person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (B) if other than the resulting, surviving or transferee Person (in each of clauses (ACompany) or (B)to which such sale, the “Successor Company”) assignment, transfer, lease, conveyance or other disposition shall (1) be have been made is a corporation corporation, partnership or limited liability company organized and or existing under the laws of the United States of AmericaStates, any State thereof or state thereof, the District of Columbia Columbia, or any territory thereof (provided thatthe Company or such Person, if as the case may be, being herein called the “Successor Company”);
(ii) the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in (if other than the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all the obligations of the Company under this Indenture and the Securities and this Indenturepursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(iiiii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary of its Restricted Subsidiaries as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transaction), ) no Default or Event of Default shall have occurred and be continuing;
(iiiiv) 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 (xand 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 able permitted to Incur an additional at least $1.00 of Coverage additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a) or ); or
(yB) the Consolidated Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture in form reasonably satisfactory to the Trustee confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Securities; and
(ivvi) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture indentures (if any) comply with this Indenture; provided. The Successor Company (if other than the Company) shall succeed to, howeverand be substituted for, that clause the Company under this Indenture and the Securities, and in such event the Company will automatically be released and discharged from its obligations under this Indenture and the Securities. Notwithstanding the foregoing clauses (iii) shall not be applicable to and (Aiv) a of this Section 5.01, (a) any Restricted Subsidiary consolidating withmay merge, merging into consolidate or transferring amalgamate with or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary, and (so long as no Capital Stock of the Company is distributed to any Person) or (Bb) the Company merging may merge, consolidate or amalgamate with an Affiliate of the Company incorporated solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes state of this Section 5.01the United States, the District of Columbia or any territory of the United States or may convert into a limited liability company, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. This Article 5 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and its Restricted Subsidiaries.
(b) Finance Co. may not, directly or indirectly, consolidate, amalgamate or merge with or into, or sell, assign, transfer, 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, any Person, unless:
(i) Finance Co. is the surviving person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Finance Co.) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation organized or existing under the laws of the CompanyUnited States, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power ofany state thereof, the Company under this IndentureDistrict of Columbia, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of or any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries territory thereof (Finance Co. or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assetssuch Person, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or being herein called a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company“Successor Co-Issuer”), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) the Successor Co-Issuer (if other than Finance Co.) expressly assumes all the obligations of Finance Co. under the Indenture and the Securities pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall or Event of Default will have occurred and be continuing; and
(iiiiv) the Company delivers Successor Co-Issuer (if other than Finance Co.) shall have delivered or caused to be delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indenture (if any) comply with the Indenture.
(c) Subject to the provisions of Section 11.02(b) (which govern the release of a Guarantee Agreementupon the sale or disposition of a Restricted Subsidiary of the Company that is a Guarantor), no Guarantor shall, and the Company shall not permit any Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person (other than any such sale, assignment, transfer, lease, conveyance or disposition in connection with the Transactions described in the Offering Circular) unless:
(i) either (A) such Guarantor, as the case may be, is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Guarantor, as the case may be) 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 (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor,” in the case of a consolidation, amalgamation, merger, winding up or sale, assignment, transfer, lease, conveyance or other disposal of all or substantially all of the properties or assets of a Guarantor) and the Successor Guarantor (if other than such Guarantor) expressly assumes all the obligations of such Guarantor under this Indenture and, if applicable, such Guarantors’ Guarantee pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee, or (b) such sale or disposition or consolidation, amalgamation or merger is not in violation of Section 4.06; and
(ii) the Successor Guarantor (if other than such Guarantor) shall have delivered or caused to be delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indenture (if any, complies ) comply with this Indenture; provided. Except as otherwise provided in this Indenture, howeverthe Successor Guarantor (if other than such Guarantor) will succeed to, that and be substituted for, such Guarantor, under this Section 5.01 shall Indenture and, such Guarantor’s Guarantee, and such Guarantor, will automatically be released and discharged from its obligations under this Indenture and, such Guarantor’s Guarantee. Notwithstanding the foregoing, (1) a Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Guarantor in another state of the United States, the District of Columbia or any territory of the United States so long as the amount of Indebtedness of the Guarantor is not be applicable to increased thereby and (2) a Restricted Subsidiary consolidating withGuarantor may merge, merging amalgamate or consolidate with another Guarantor or an Issuer. In addition, notwithstanding the foregoing, any Guarantor may consolidate, amalgamate or merge with or into or transferring wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or part substantially all of its properties and or assets to (collectively, a “Transfer”) to, any Restricted Subsidiary of the Company that is not Finance Co. or a Subsidiary Guarantor; provided that at the time of each such Transfer pursuant to clause (y) the aggregate amount of all such Transfers since the Issue Date shall not exceed 5.0% of the consolidated assets of the Company, Finance Co. and the Guarantors as shown on the most recent available balance sheet of the Company and the Restricted Subsidiaries after giving effect to each such Transfer and including all Transfers occurring from and after the Issue Date (excluding Transfers in connection with the Transactions described in the Offering Circular).
Appears in 2 contracts
Samples: Third Supplemental Indenture (Verso Paper Corp.), Indenture (Verso Sartell LLC)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or intointo or wind up into (whether or not the Company is the surviving corporation), or conveysell, transfer or assign, transfer, lease, in one transaction convey or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its properties or assets in one or more related transactions to, any Person, Person unless:
(i) either (A) the Company shall be is the surviving corporation or the Person formed by or surviving any such consolidation or merger (B) if other than the resulting, surviving or transferee Person (in each of clauses (ACompany) or (B)to which such sale, the “Successor Company”) assignment, transfer, lease, conveyance or other disposition shall (1) be have been made is a corporation corporation, partnership or limited liability company organized and or existing under the laws of the United States of AmericaStates, any State thereof or state thereof, the District of Columbia Columbia, or any territory thereof (provided thatthe Company or such Person, if as the case may be, being herein called the “Successor Company”);
(ii) the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in (if other than the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all the obligations of the Company under this Indenture and the Securities and this Indenturepursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(iiiii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary of its Restricted Subsidiaries as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transaction), ) no Default or Event of Default shall have occurred and be continuing;
(iiiiv) 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
(xA) the Successor Company would be able permitted to Incur an additional at least $1.00 of Coverage additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a) or ); or
(yB) the Consolidated Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company Holdings and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Securities; and
(vi) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Company shall succeed to, and be substituted for, the Company under this Indenture and the Securities. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary, and (b) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another state of the United States so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.
(b) Subject to the provisions of Section 10.02(b) (which govern the release of a Guarantee upon the sale or disposition of a Restricted Subsidiary of Holdings that is a Guarantor), each Guarantor shall not, and the Company shall not permit any Guarantor to, consolidate or merge with or into or wind up into (whether or not such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition 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 (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”);
(ii) the Successor Guarantor (if other than such Guarantor) expressly assumes all the obligations of such Guarantor under this Indenture and such Guarantors’ Guarantee pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Guarantor or any of its Subsidiaries as a result of such transaction as having been Incurred by the Successor Guarantor or such Subsidiary at the time of such transaction) no Default or Event of Default shall have occurred and be continuing; and
(iv) the Company Successor Guarantor (if other than such Guarantor) shall have delivered or caused to be delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and Guarantor shall succeed to, and be substituted for, and may exercise every right and power of, the Company such Guarantor under this IndentureIndenture and such Guarantor’s Guarantee. Notwithstanding the foregoing, and (1) a Guarantor may merge with an Affiliate incorporated or organized solely for the predecessor purpose of reincorporating or reorganizing such Guarantor in another state of the United States, so long as the amount of Indebtedness of the Guarantor is not increased thereby, (2) Holdings may merge with the Company, except in the case of (3) a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries Guarantor may merge with another Guarantor or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b4) The Company shall not permit any Subsidiary a Guarantor to consolidate with may covert into a corporation, partnership, limited partnership, limited liability corporation or merge with trust organized or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which of organization of such Guarantor. Notwithstanding the foregoing, any Guarantor (other than Holdings) may consolidate or merge with or into or wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to, any Restricted Subsidiary was organized or under the laws of the United States Company that is not a Guarantor; provided that at the time of America, or any State thereof or each such Transfer the District aggregate amount of Columbia, all such Transfers since the Issue Date shall not exceed 5% of the consolidated assets of the Company and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all Guarantors as shown on the obligations most recent available balance sheet of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately Holdings and the Restricted Subsidiaries after giving effect to each such transaction or transactions on a pro forma basis (Transfer and treating any Indebtedness which becomes an obligation of including all Transfers occurring from and after the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary GuarantorIssue Date.
Appears in 2 contracts
Samples: Indenture (Nalco Holding CO), Indenture (Nalco Holding CO)
When Company May Merge or Transfer Assets. (a) The Company Holdings shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i1) either (A) the Company Holdings shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor CompanyHoldings”) shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and Successor Holdings (provided that, if the Successor Company is a limited liability company, then there not Holdings) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of Holdings under its Guarantee of the Securities and this Indenture;
(2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of Successor Holdings or any Subsidiary as a result of such transaction as having been Incurred by Successor Holdings or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(3) immediately after giving pro forma effect to such transaction, Successor Holdings would (a) be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (b) have had a Consolidated Coverage Ratio greater than the Consolidated Coverage Ratio immediately prior to such transaction and without giving pro forma effect thereto; and
(4) Holdings shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture.
(b) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of related transactions, directly or indirectly, all or substantially all of its assets in one or a series of related transactions to, any Person, unless:
(1) the surviving corporation or the resulting, surviving or transferee Person (the “Successor Company”) shall be a corporation, limited liability corporation or limited partnership organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Company) shall expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture; and if the Successor Company shall be a limited liability corporation or limited partnership, a Wholly Owned Subsidiary of the Successor Company that is a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia shall expressly assume, on a joint and several basis with the Successor Company, by an indenture supplemental thereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Successor Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such Subsidiary at the time of such transaction), ) no Default shall have occurred and be continuing;
(iii3) immediately after giving pro forma effect to such transaction, either Holdings would (xa) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (yb) have had a Consolidated Coverage Ratio greater than the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transactiontransaction and without giving pro forma effect thereto; and
(iv4) the Company shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Holdings or the Company, which properties and assets, if held by Holdings or the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of Holdings or the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of Holdings or the Company, as applicable. The For the avoidance of doubt, any disposition of the Ethanol Assets or any disposition of shares of Capital Stock of the Ethanol Subsidiary shall not constitute the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of Holdings, the Company or the Restricted Subsidiaries. Successor Holdings or the Successor Company shall be the successor to Holdings or the Company Company, as applicable, and shall succeed to, and be substituted for, and may exercise every right and power of, Holdings or the Company Company, as applicable, under this Indenture, Indenture and the predecessor Holdings or the Company, as applicable, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the SecuritiesSecurities and Guarantees, as applicable. For all purposes of this Indenture, Subsidiaries of any Successor Company Holdings shall, upon any transaction subject to this Section 5.01covenant, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(bc) The Company Holdings shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all of its assets to any Person unless:
: (i1) 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 an Affiliate of the CompanyHoldings), 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 Holdings provides an Officer’s Certificate to the Trustee to the effect that Holdings shall comply with its obligations under Section 4.06 in respect of such disposition, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreementsupplemental indenture, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
; (ii2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
and (iii3) the Company Holdings delivers to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreementsupplemental indenture, if any, complies with this Indenture; provided, however, that . Notwithstanding this Section 5.01 shall not be applicable to a 5.01(c), (1) any Restricted Subsidiary consolidating may consolidate with, merging merge into or transferring transfer all or part of its properties and assets to Holdings, the Company or any Subsidiary Guarantor and (2) Holdings or the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating Holdings or the Company in a Subsidiary Guarantorjurisdiction within the United States of America, any State thereof or the District of Columbia.
Appears in 2 contracts
Samples: Indenture (Murphy USA Inc.), Indenture (Murphy USA Inc.)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to any person, nor will the Company (so long as no Capital Stock permit any Subsidiary to enter into any such transaction or series of transactions if such transaction or series of transactions, in the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company aggregate, would result in another jurisdiction. For purposes of this Section 5.01, the a sale, lease, conveyance, assignment, transfer transfer, lease or other disposition of all or substantially all of the properties and assets of the Company and its Subsidiaries on a consolidated basis to any other person or persons, unless:
(a) either (i) the Company or such Subsidiary shall be the surviving corporation or (ii) the person (if other than the Company) formed by such consolidation or into which the Company or such Subsidiary is merged or the person which acquires by conveyance, transfer or lease the properties and assets of the Company or such Subsidiary substantially as an entirety (A) shall be organized and validly existing under the laws of the United States or any state thereof or the District of Columbia and (B) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company or such Subsidiary under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been satisfied. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be or the applicable Subsidiary is merged or the successor person to the Company and 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 or the applicable Subsidiary under this Indenture, Indenture with the same effect as if such successor had been named as the Company or the applicable Subsidiary herein; and the predecessor Companythereafter, except in the case of a leaselease and any obligations the Company or the applicable Subsidiary may have under a supplemental indenture pursuant to Section 11.14 hereof, the Company or the applicable Subsidiary shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.06 hereof, the Company, the applicable Subsidiary, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, release of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transactionthe applicable Subsidiary.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Selective Insurance Group Inc), Indenture (RPM International Inc/De/)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactionsnot, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not the Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
(i) either (A) the Company shall be is the surviving corporation Person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (B) if other than the resulting, surviving or transferee Person (in each of clauses (ACompany) or (B)to which such sale, the “Successor Company”) assignment, transfer, lease, conveyance or other disposition shall (1) be have been made is a corporation corporation, partnership or limited liability company organized and or existing under the laws of the United States of AmericaStates, any State thereof or state thereof, the District of Columbia Columbia, or any territory thereof (the Company or such Person, as the case may be, being herein called the “Successor Company”); provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized that in the jurisdictions permitted by this clause (1) and case where the surviving Person is not a corporation, a co-obligor of the SecuritiesSecurities is a corporation;
(ii) and the Successor Company (2if other than the Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all the obligations of the Company under this Indenture and the Securities and this Indenturepursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(iiiii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary of its Restricted Subsidiaries as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transaction), ) no Default or shall have occurred and be continuing;
(iiiiv) 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 (xand 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 able permitted to Incur an additional at least $1.00 of Coverage additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a) or ); or
(yB) the Consolidated Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Securities;
(vi) if the Successor Company is not organized as a corporation after such transaction, a successor corporation that is a Subsidiary of the Successor Company shall continue to be co-obligor of the Securities and shall have by supplemental indenture confirmed its obligation under this Indenture and the Securities; and
(ivvii) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture indentures (if any) comply with this Indenture; provided. The Successor Company (if other than the Company) shall succeed to, howeverand be substituted for, that clause the Company under this Indenture and the Securities, and in such event the Company will automatically be released and discharged from its obligations under this Indenture and the Securities. Notwithstanding the foregoing clauses (iii) shall not be applicable to and (Aiv) a of this Section 5.01, (a) any Restricted Subsidiary consolidating withmay merge, merging into consolidate or transferring amalgamate with or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary, and (so long as no Capital Stock of the Company is distributed to any Person) or (Bb) the Company merging may merge, consolidate or amalgamate with an Affiliate of the Company incorporated solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes state of this Section 5.01the United States, the District of Columbia or any territory of the United States or may convert into a limited liability company, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. This Article 5 will not apply to (i) a sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and its Restricted Subsidiaries, or (ii) the conversion of Rexnord into a Delaware limited liability company.
(b) Subject to the provisions of Section 11.02(b) (which govern the release of a Guarantee upon the sale or disposition of a Restricted Subsidiary of the Company that is a Guarantor), neither Rexnord nor any Guarantor shall, and the Company shall not permit Rexnord or any Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not Rexnord or such Guarantor is the surviving Person), or sell, assign, transfer, lease, conveyanceconvey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person (other than any such sale, assignment, transfer transfer, lease, conveyance or disposition in connection with the Transactions described in the Offering Circular) unless:
(i) either (A) Rexnord or such Guarantor, as the case may be, is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Rexnord or such Guarantor, as the case may be) 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 (Rexnord, such Guarantor or such Person, as the case may be, being herein called the “Successor Co-Issuer” in the case of a consolidation, amalgamation, merger, winding up or sale, assignment, transfer, lease, conveyance or other disposal of all or substantially all of the properties and or assets of one Rexnord, and the “Successor Guarantor,” in the case of a consolidation, amalgamation, merger, winding up or more Subsidiaries of the Companysale, which properties and assetsassignment, if held by the Company instead of such Subsidiariestransfer, would constitute all lease, conveyance or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer other disposal of all or substantially all of the properties or assets of a Guarantor) and the Successor Co-Issuer or Successor Guarantor (if other than Rexnord or such Guarantor, as the case may be) expressly assumes all the obligations of Rexnord or such Guarantor, as the case may be, under this Indenture and, if applicable, such Guarantors’ Guarantee pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee, or (b) other than in the case of a sale, disposition, consolidation, amalgamation or merger of Rexnord, such sale or disposition or consolidation, amalgamation or merger is not in violation of Section 4.06;
(ii) the Successor Co-Issuer (if other than Rexnord) expressly assumes all the obligations of Rexnord under this Indenture and the Securities pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee; and
(iii) the Successor Co-Issuer or Successor Guarantor (if other than Rexnord or such Guarantor, as the case may be) shall have delivered or caused to be delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Co-Issuer or Successor Guarantor (if other than Rexnord or such Guarantor, as the case may be) will succeed to, and be substituted for, Rexnord or such Guarantor, as the case may be, under this Indenture and, if applicable, such Guarantor’s Guarantee, and Rexnord or such Guarantor, as the case may be, will automatically be released and discharged from its obligations under this Indenture and, if applicable, such Guarantor’s Guarantee. Notwithstanding the foregoing, (1) Rexnord or a Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating Rexnord or such Guarantor in another state of the United States, the District of Columbia or any territory of the United States so long as the amount of Indebtedness of Rexnord or the Guarantor is not increased thereby and (2) Rexnord or a Guarantor may merge, amalgamate or consolidate with another Guarantor or the Company. In addition, notwithstanding the foregoing, Rexnord or any Guarantor may consolidate, amalgamate or merge with or into or wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to, (x) the Company, Rexnord or any Guarantor or (y) any Restricted Subsidiary of the Company that is not Rexnord or a Guarantor; provided that at the time of each such Transfer pursuant to clause (y) the aggregate amount of all such Transfers since the Issue Date shall not exceed 5.0% of the consolidated assets of the Company, Rexnord and the Guarantors as shown on the most recent available balance sheet of the Company and the Restricted Subsidiaries after giving effect to each such Transfer and including all Transfers occurring from and after the Issue Date (excluding Transfers in connection with the Transactions described in the Offering Circular). The Successor Upon consummation of the Transactions, the Company shall execute and deliver to the Trustee a supplemental indenture of the type referred to in Section 5.01(ii), whereupon the Company shall be the successor to the Successor Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company Merger Sub under this Indenture. Notwithstanding anything above to the contrary, the merger of Merger Sub with and into the Company on the Issue Date as described in the Merger Agreement and the predecessor Companyconversion of Rexnord into a Delaware limited liability company immediately following the Transactions, except in the each case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of permitted under this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
When Company May Merge or Transfer Assets. (a) The Company shall may not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly all or indirectlysubstantially all its assets to any Person; PROVIDED, HOWEVER, that the Company may consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all its assets to, to any Person, unlessif:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”"SUCCESSOR COMPANY") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities Notes and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness Debt which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness Debt pursuant to Section 4.03(a4.3(a);
(iv) or (y) the Consolidated Coverage Ratio for immediately after giving effect to such transaction, the Successor Company and its Restricted Subsidiaries would be equal to or greater shall have Consolidated Net Worth in an amount that is not less than such ratio for the Consolidated Net Worth of the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivv) prior to such transaction, the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer transaction and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except Company (other than in the case of a lease, ) shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transactionNotes.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, guarantee agreement in a form satisfactory acceptable to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
; (ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness Debt which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
and (iii) the Company delivers to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreementguarantee agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Planet Hollywood International Inc), Indenture (Planet Hollywood International Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactionsnot, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not the Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
(i) either (A) the Company shall be is the surviving corporation Person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (B) if other than the resulting, surviving or transferee Person (in each of clauses (ACompany) or (B)to which such sale, the “Successor Company”) assignment, transfer, lease, conveyance or other disposition shall (1) be have been made is a corporation corporation, partnership or limited liability company organized and or existing under the laws of the United States of AmericaStates, any State thereof or state thereof, the District of Columbia Columbia, or any territory thereof (provided thatthe Company or such Person, if as the case may be, being herein called the “Successor Company”);
(ii) the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in (if other than the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all the obligations of the Company under this Indenture, the Securities and this Indenturethe Security Documents pursuant to supplemental indentures;
(iiiii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Company (including any Successor Company thereto) or any Subsidiary of its Restricted Subsidiaries as a result of such transaction as having been Incurred by such Successor the Company or such Restricted Subsidiary at the time of such transaction), ) no Default or Event of Default shall have occurred and be continuing;
(iiiiv) 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 (xand treating any Indebtedness which becomes an obligation of the Company (including any Successor Company thereto) or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Company or such Restricted Subsidiary at the time of such transaction), either
(A) the Successor Company would be able permitted to Incur an additional at least $1.00 of Coverage additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a) or ); or
(yB) the Consolidated Fixed Charge Coverage Ratio for the Company (including any Successor Company thereto) and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Note Guarantee shall apply to such Person’s obligations under this Indenture, the Securities and the Security Documents; and
(ivvi) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture indentures (if any) comply with this Indenture; provided. The Successor Company (if other than the Company) shall succeed to, howeverand be substituted for, that clause the Company under this Indenture and the Securities, and in such event the Company will automatically be released and discharged from its obligations under this Indenture and the Securities. Notwithstanding the foregoing clauses (iii) shall not be applicable to and (Aiv) a of this Section 5.01, (a) any Restricted Subsidiary consolidating withmay merge, merging into consolidate or transferring amalgamate with or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary, and (so long as no Capital Stock of the Company is distributed to any Person) or (Bb) the Company merging may merge, consolidate or amalgamate with an Affiliate of the Company incorporated solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes state of this Section 5.01the United States, the District of Columbia or any territory of the United States, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. This Article 5 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and its Restricted Subsidiaries.
(b) Finance Co. may not, directly or indirectly, consolidate, amalgamate or merge with or into, or sell, assign, transfer, 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, any Person, unless:
(i) Finance Co. is the surviving person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Finance Co.) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation organized or existing under the laws of the CompanyUnited States, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power ofany state thereof, the Company under this IndentureDistrict of Columbia, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of or any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries territory thereof (Finance Co. or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assetssuch Person, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or being herein called a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company“Successor Co-Issuer”), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) the Successor Co-Issuer (if other than Finance Co.) expressly assumes all the obligations of Finance Co. under this Indenture, the Securities and the Security Documents pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall or Event of Default will have occurred and be continuing; and
(iiiiv) the Company delivers Successor Co-Issuer (if other than Finance Co.) shall have delivered or caused to be delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such Guarantee Agreement, supplemental indenture (if any, complies ) comply with this Indenture; provided, however, that this .
(c) Subject to the provisions of Section 5.01 shall not be applicable to 12.02(b) (which govern the release of a Note Guarantee upon the sale or disposition of a Restricted Subsidiary consolidating withof the Company that is a Guarantor), merging no Guarantor shall, and the Company shall not permit any Guarantor to, consolidate, amalgamate or merge with or into or transferring wind up into (whether or not such Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or part substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Guarantor, as the case may be, is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Guarantor, as the case may be) 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 (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor,” in the case of a consolidation, amalgamation, merger, winding up or sale, assignment, transfer, lease, conveyance or other disposal of all or substantially all of the properties or assets of a Guarantor) and assets the Successor Guarantor (if other than such Guarantor) expressly assumes all the obligations of such Guarantor under this Indenture, the Security Documents and, if applicable, such Guarantors’ Note Guarantee pursuant to a supplemental indenture, or (B) such sale or disposition or consolidation, amalgamation or merger is not in violation of Section 4.06; and
(ii) the Successor Guarantor (if other than such Guarantor) shall have delivered or caused to be delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Guarantor (if other than such Guarantor) will succeed to, and be substituted for, such Guarantor, under this Indenture and, such Guarantor’s Note Guarantee, and such Guarantor, will automatically be released and discharged from its obligations under this Indenture and, such Guarantor’s Note Guarantee. Notwithstanding the foregoing, (1) a Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Guarantor in another state of the United States, the District of Columbia or any territory of the United States or may convert into a limited liability company so long as the amount of Indebtedness of the Guarantor is not increased thereby and (2) a Guarantor may merge, amalgamate or consolidate with another Guarantor or an Issuer. In addition, notwithstanding the foregoing, any Guarantor may consolidate, amalgamate or merge with or into or wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to, any Restricted Subsidiary of the Company that is not Finance Co. or a Subsidiary Guarantor; provided that at the time of each such Transfer the aggregate amount of all such Transfers since the Issue Date shall not exceed 5.0% of the consolidated assets of the Company, Finance Co. and the Guarantors as shown on the most recent available balance sheet of the Company and the Restricted Subsidiaries after giving effect to each such Transfer and including all Transfers occurring from and after the Issue Date.
Appears in 2 contracts
Samples: Indenture (Verso Paper Corp.), Indenture (Verso Paper Corp.)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or or, subject to Section 4.13, convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii3) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction); and
(iv4) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii3) shall will not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or another Restricted Subsidiary or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company predecessor company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company predecessor company under this Indenture, and the predecessor Companycompany, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or or, subject to Section 4.13, convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person (other than the Company or a Subsidiary Guarantor) unless:
(i1) 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 or an Affiliate a Subsidiary of the Company), whether through a merger, consolidation or sale of Capital Stock or assets or (y) thatassets, as a result if in connection therewith the Company provides an Officers’ Certificate to the Trustee to the effect that the Company shall comply with its obligations under Section 4.06 in respect of the disposition of all or a portion of its Capital Stock, ceases to be a Subsidiarysuch disposition, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Guaranty Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, Subsidiary under its Subsidiary GuaranteeGuaranty;
(ii2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii3) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Guaranty Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Purchase Agreement (Amh Holdings, LLC), Indenture (Associated Materials, LLC)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactionsnot, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not the Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person, Person unless:
(i) either (A) the Company shall be is the surviving corporation Person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (B) if other than the resulting, surviving or transferee Person (in each of clauses (ACompany) or (B)to which such sale, the “Successor Company”) assignment, transfer, lease, conveyance or other disposition shall (1) be have been made is a corporation corporation, partnership or limited liability company organized and or existing under the laws of the United States of AmericaStates, any State thereof or state thereof, the District of Columbia Columbia, or any territory of the United States (provided thatthe Company or such Person, if as the case may be, being herein called the “Successor Company”);
(ii) the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in (if other than the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all the obligations of the Company under this Note pursuant to a document or instrument in form and substance reasonably satisfactory to the Securities and this IndentureHolder;
(iiiii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary of its Subsidiaries as a result of such transaction as having been Incurred incurred by such the Successor Company or such Subsidiary at the time of such transaction), ) no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv) the Company shall have delivered to the Trustee Holder an Officersofficers’ Certificate certificate and an Opinion opinion of Counselcounsel (in form and substance satisfactory to the Holder), each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply complies with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the CompanyNote. The Successor Company shall be (if other than the successor to the Company and Company) shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this IndentureNote, and in such event the predecessor Company, except in the case of a lease, shall Company will automatically be released and discharged from its obligations under this Note. Notwithstanding the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
foregoing clauses (iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion (iv) of Counselthis Section 6.04(a) (A) any Subsidiary may merge, each stating that such consolidation, merger consolidate or amalgamate with or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or to another Subsidiary, and (B) the Company may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating the Company in another state of the United States, the District of Columbia or any territory of the United States or may convert into a Subsidiary Guarantorlimited liability company, so long as the amount of Indebtedness of the Company and its Subsidiaries is not increased thereby. This Section 6.04 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and its Subsidiaries.
Appears in 2 contracts
Samples: Investment Agreement (Consolidated Communications Holdings, Inc.), Investment Agreement
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to any person, nor will the Company (so long as no Capital Stock permit any Subsidiary to enter into any such transaction or series of transactions if such transaction or series of transactions, in the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company aggregate, would result in another jurisdiction. For purposes of this Section 5.01, the a sale, lease, conveyance, assignment, transfer transfer, lease or other disposition of all or substantially all of the properties and assets of the Company and its Subsidiaries on a consolidated basis to any other person or persons, unless:
(a) either (1) the Company or such subsidiary shall be the surviving corporation or (2) the person (if other than the Company) formed by such consolidation or into which the Company or such Subsidiary is merged or the person which acquires by conveyance, transfer or lease the properties and assets of the Company or such Subsidiary substantially as an entirety (i) shall be 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 indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company or such Subsidiary under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been satisfied. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be or the applicable Subsidiary is merged or the successor person to the Company and 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 or the applicable Subsidiary under this Indenture, Indenture with the same effect as if such successor had been named as the Company or the applicable Subsidiary herein; and the predecessor Companythereafter, except in the case of a leaselease and any obligations the Company or the applicable Subsidiary may have under a supplemental indenture pursuant to Section 11.14, the Company or the applicable Subsidiary shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.06, the Company, the applicable Subsidiary, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, release of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transactionthe applicable Subsidiary.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Alaska Air Group Inc), Indenture (CBRL Group Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other Person or convey, transfer transfer, sell or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all of its properties and assets to, as an entirety to any PersonPerson or permit any Person to consolidate with or merge into the Company, unless:
(i1) either (Aa) the Company shall be the surviving corporation Person or (Bb) the resulting, surviving or transferee Person (in each if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer, sale or lease of clauses (A) all or (B), substantially all of the “Successor Company”) properties and assets of the Company shall (1) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there domestic jurisdiction and shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default Event of Default, and no event that, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv3) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each Counsel stating that such consolidation, merger merger, conveyance, transfer, sale or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) comply with this Indenture; provided, however, Section 801 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging such transaction have been satisfied. The successor Person formed by such consolidation or into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of which the Company is distributed merged or the successor Person to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes of this Section 5.01, the sale, lease, which such conveyance, assignmenttransfer, transfer sale or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this IndentureIndenture with the same effect as if such successor had been named as the Company herein; and thereafter, and the predecessor Company, except in the case of a lease, Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 903, the Company, the Trustee and the successor Person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor Person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Nelnet Inc), Indenture (Nelnet Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Company as the case may be) shall expressly assume, by a supplemental indenture hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Notes and this Indenture;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. The Successor Company shall succeed to, and be substituted for, and may exercise every right and power of the Company under this Indenture.
(b) The Company shall not permit any Note Guarantor to consolidate with or merge with or into, or convey, transfer or lease all or substantially all of its assets to any Person unless:
(i) in the case of any Note Guarantor which is a Domestic Subsidiary, the resulting, surviving or transferee Person will be a corporation, partnership or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided thatColumbia, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of and such Person which (if not such Note Guarantor) shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture a supplemental theretoindenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company such Note Guarantor under the Securities and this Indentureits Note Guarantee;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company resulting, surviving or any Subsidiary transferee Person as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary Person at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iviii) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) the foregoing shall not be applicable apply to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets any Note Guarantor which ceases to the Company (so long as no Capital Stock Guarantee any Indebtedness of the Company is distributed to evidenced by any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transactionoutstanding Designated Notes.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (On Semiconductor Corp), Indenture (On Semiconductor Corp)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or with, merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all of its properties and assets to, to any Person, unless:
(ia) either (A1) the Company shall be the surviving continuing corporation or (B2) the resultingperson (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, surviving transfer or transferee Person lease all or substantially all of the properties and assets of the Company (in each of clauses (A) or (B), the “Successor Company”i) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Securities Notes and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Event of Default and no event which, after notice or lapse of time, would become an Event of Default, shall have occurred happened and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be is merged or the successor person to the Company and which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a leaselease and obligations the Company may have under a supplemental indenture pursuant to Section 10.11, the Company shall be released discharged from all obligations and covenants under this Indenture and the obligation Notes. Subject to pay Section 9.06, the principal Company, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of such successor person and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such discharge and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Freeport McMoran Copper & Gold Inc), Indenture (McMoran Exploration Co /De/)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or intointo or wind up into (whether or not the Company is the surviving corporation), or conveysell, transfer or assign, transfer, lease, in one transaction convey or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its properties or assets in one or more related transactions to, any Person, Person unless:
(i) either (A) the Company shall be is the surviving corporation or the Person formed by or surviving any such consolidation or merger (B) if other than the resulting, surviving or transferee Person (in each of clauses (ACompany) or (B)to which such sale, the “Successor Company”) assignment, transfer, lease, conveyance or other disposition shall (1) be have been made is a corporation corporation, partnership or limited liability company organized and or existing under the laws of the United States of AmericaStates, any State thereof or state thereof, the District of Columbia Columbia, or any territory thereof (provided thatthe Company or such Person, if as the case may be, being herein called the “Successor Company”);
(ii) the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in (if other than the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all the obligations of the Company under this Indenture and the Securities and this IndentureNotes pursuant to supplemental indentures, the Security Documents or other documents or instruments in form reasonably satisfactory to the Trustee;
(iiiii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary of its Restricted Subsidiaries as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transaction), ) no Default or Event of Default shall have occurred and be continuing;
(iiiiv) 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:
(xA) the Fixed Charge Coverage Ratio of the Successor Company and its Restricted Subsidiaries for the most recently ended four full fiscal quarters for which financial statements are available immediately preceding the date of such transaction would be able have been at least 2.00 to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or 1.00; or
(yB) the Consolidated Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries for the most recently ended four full fiscal quarters for which financial statements are available would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(v) if the Successor Company is other than the Company, each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture, the Notes and the Security Documents; and
(ivvi) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture indentures (if any) and Security Documents comply with this Indenture; provided. The Successor Company (if other than the Company) shall succeed to, howeverand be substituted for, that the Company under this Indenture, the Notes and the Security Documents, and the Company shall automatically be released and discharged from its obligations under this Indenture, the Notes and the Security Documents. Notwithstanding the foregoing clause (iii) shall not be applicable to of this Section 5.01(a) and so long as the foregoing clause (Aiv) a Restricted Subsidiary consolidating of this Section 5.01(a) is satisfied, (a) the Company may consolidate with, merging merge into or transferring sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to Holdings, the Company (so long as no Capital Stock of the Company is distributed or to any Person) or Restricted Subsidiary, and (Bb) the Company merging may merge or consolidate with an Affiliate of the Company incorporated or organized solely for the purpose and with the sole effect of reincorporating or reorganizing the Company in another jurisdiction. For purposes state of this Section 5.01the United States, the sale, lease, conveyance, assignment, transfer District of Columbia or other disposition of all or substantially all any territory of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, United States so long as the case may be, amount of Indebtedness of the Company and its Restricted Subsidiaries immediately prior to such is not increased thereby (any transaction shall be deemed to have been Incurred upon such transactiondescribed in this sentence, a “Specified Merger/Transfer Transaction”).
(b) The Subject to the provisions of Section 10.02(b) (which govern the release of a Guarantee upon the sale or disposition of a Restricted Subsidiary of the Company that is a Guarantor), each Subsidiary Guarantor shall not, and the Company shall not permit any Subsidiary Guarantor to to, consolidate with or merge with or intointo or wind up into (whether or not such Subsidiary Guarantor is the surviving corporation), or conveysell, transfer or assign, transfer, lease, in one transaction convey or a series otherwise dispose of transactions, all or substantially all of its properties or assets to in one or more related transactions to, any Person unless:
(i) except in the case of a Subsidiary Guarantor either (x) that has been disposed of in its entirety to another such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) or to the Company which such sale, assignment, transfer, lease, conveyance or an Affiliate of the Company)other disposition shall have been made is a corporation, whether through a merger, consolidation partnership or sale of Capital Stock limited liability company organized 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of AmericaStates, or any State thereof or state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”) and the Successor Guarantor (if other than such Person shall Guarantor) expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, assumes all the obligations of such SubsidiarySubsidiary Guarantor under this Indenture and such Subsidiary Guarantor’s Guarantee pursuant to a supplemental indenture, if any, under its Subsidiary Guaranteethe Security Documents or other documents or instruments in form reasonably satisfactory to the Trustee or (y) such sale or disposition or consolidation or merger is not in violation of Section 4.06;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving Successor Guarantor or transferee Person any of its Subsidiaries as a result of such transaction as having been issued Incurred by the Successor Guarantor or such Person Subsidiary at the time of such transaction), ) no Default or Event of Default shall have occurred and be continuing; and
(iii) the Company delivers Successor Guarantor (if other than such Subsidiary Guarantor) shall have delivered or caused to be delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, supplemental indenture (if any, complies ) and Security Documents comply with this Indenture; provided. The Successor Guarantor shall succeed to, howeverand be substituted for, that such Subsidiary Guarantor under this Indenture and such Subsidiary Guarantor’s Guarantee and the Security Documents, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and such Subsidiary Guarantor’s Guarantee and the Security Documents. Notwithstanding the foregoing, (1) a Guarantor may merge or consolidate with an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing such Guarantor in another state of the United States, the District of Columbia or any territory of the United States, so long as the amount of Indebtedness of the Guarantor is not increased thereby, (2) a Subsidiary Guarantor may merge or consolidate with another Subsidiary Guarantor or the Company, and (3) a Subsidiary Guarantor may convert into a corporation, partnership, limited partnership, limited liability corporation or trust organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor.
(c) Subject to the provisions of Section 5.01 shall 10.02(b) (which govern the release of a Guarantee of Holdings), Holdings will not be applicable to a Restricted Subsidiary consolidating with, merging consolidate or merge with or into or transferring wind up into (whether Holdings is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or part substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) Holdings is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (Holdings or such Person, as the case may be, being herein called the “Successor Parent Guarantor”) and assets the Successor Parent Guarantor (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture, the Security Documents and Holdings’ Guarantee pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee;
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(iii) the Successor Parent Guarantor (if other than Holdings) shall have delivered or caused to be delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) and Security Documents comply with this Indenture. The Successor Parent Guarantor will succeed to, and be substituted for, Holdings under this Indenture, Holdings’ Guarantee and the Security Documents, and Holdings will automatically be released and discharged from its obligations under this Indenture, Holdings’ Guarantee and the Security Documents. Notwithstanding the foregoing, (1) Holdings may merge or consolidate with an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing Holdings in another state of the United States, the District of Columbia or any territory of the United States, (2) Holdings may merge or consolidate with the Company and (3) Holdings may convert into a corporation, partnership, limited partnership, limited liability corporation or a Subsidiary Guarantortrust organized or existing under the laws of the jurisdiction of organization of Holdings.
Appears in 2 contracts
Samples: Indenture (Delta Tucker Holdings, Inc.), Indenture (Worldwide Recruiting & Staffing Services LLC)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with into any other Person or intosell, or convey, lease or transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all of its assets toto any other Person in any one transaction or series of related transactions, or permit any PersonPerson to consolidate with or merge into the Company, unless:
(ia) either (Ai) the Company shall be the surviving corporation Person, or (Bii) the resulting, surviving Person formed by such consolidation or transferee into which the Company is merged or the Person (in each of clauses (A) or (B), to which the “Successor Company”) ’s assets are so transferred shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, any State state thereof or the District of Columbia (provided thatColumbia; provided, if however, that the Successor Company is a limited liability company, then there surviving Person shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities Notes and this the Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default or Event of Default, and no event that, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer, sale or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging such transaction have been satisfied. The successor Person formed by such consolidation or into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of which the Company is distributed merged or the successor Person to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes of this Section 5.01, the sale, lease, which such conveyance, assignmenttransfer, transfer sale or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this the Indenture with the same effect as if such successor had been named as the Company herein; and thereafter, the Company shall be discharged from all obligations and covenants under the Indenture and the Notes. Subject to Section 9.3 of the Original Indenture, the Company, the Trustee and the predecessor Company, except in successor Person shall enter into a supplemental indenture to evidence the case succession and substitution of a lease, shall be released from the obligation to pay the principal of such successor Person and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such discharge and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Second Supplemental Indenture (Mgic Investment Corp), Supplemental Indenture (Mgic Investment Corp)
When Company May Merge or Transfer Assets. Section 5.1 of the Original Indenture is hereby amended and restated with respect to the Notes (but not with respect to any other series of Securities) as follows:
(a) The Company shall not consolidate with or merge with or intointo or wind up into (whether or not the Company is the surviving corporation), or sell, assign, convey, transfer transfer, lease or lease, in one transaction or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its assets toproperties and assets, in one or more related transactions, to any Person, Person unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall is a Person (1other than an individual) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof state or territory thereof, or the District of Columbia Columbia;
(provided that, if 2) the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in (if other than the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all of the obligations of the Company under the Securities Notes and this Indenturethe Indenture pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee;
(ii3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(4) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation related financing transactions, as if such transactions had occurred at the beginning of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;applicable four-quarter period,
(iii) immediately after giving pro forma effect to such transaction, either (xa) the Successor Company would be able to Incur an additional at least $1.00 of Coverage additional Indebtedness pursuant to Section 4.03(a) or 4.03, or
(yb) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater no less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv5) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, winding up or transfer disposition, and such supplemental indenture (indenture, if any) , comply with this the Indenture; provided, however, that clause .
(iiib) shall not be applicable to Notwithstanding Section 5.01(a)(3) and 5.01(a)(4),
(A1) a any Restricted Subsidiary consolidating may consolidate with, merging merge with or into or transferring transfer all or part of its properties and assets to the Company (or another Restricted Subsidiary so long as no Capital Stock of the Company Restricted Subsidiary is distributed to any Person) Person other than the Company or a Restricted Subsidiary; provided that, in the case of a Restricted Subsidiary that merges into the Company, the Company shall not be required to comply with Section 5.01(a)(5); and
(B2) the Company merging may merge with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionstate or territory of the United States or the District of Columbia, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. For purposes of this Section 5.01, the sale, leaseassignment, conveyance, assignmenttransfer, transfer lease or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall will be deemed to be the transfer disposition of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.”
Appears in 2 contracts
Samples: Fifth Supplemental Indenture (Covanta Holding Corp), Fourth Supplemental Indenture (Covanta Holding Corp)
When Company May Merge or Transfer Assets. (a) The Company shall will not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of AmericaStates, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities Notes and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iii3) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction5.03(a); and
(iv4) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause clauses (iii3) shall and (4) will not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes of this Section 5.01Article 6, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transactionNotes.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Phillips Van Heusen Corp /De/), Indenture (Phillips Van Heusen Corp /De/)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of related transactions, directly or indirectly, all or substantially all the assets of the Company and its assets Restricted Subsidiaries, taken as a whole, to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and (provided that, if B) the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in a form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) if as a result of such transaction the Securities become convertible into Common Stock or other securities issued by a third party, such third party assumes or fully and unconditionally guarantees all obligations of the Company or any successor under this Indenture and the Securities;
(iii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iiiiv) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a);
(v) or (y) the Consolidated Coverage Ratio for immediately after giving effect to such transaction, the Successor Company and its Restricted Subsidiaries would be equal shall have Adjusted Consolidated Net Tangible Assets that are not less than the Adjusted Consolidated Net Tangible Assets prior to such transaction;
(vi) in the case of a conveyance, transfer or greater than such ratio for lease of all or substantially all the assets of the Company and its Restricted Subsidiaries immediately prior Subsidiaries, taken as a whole, such assets shall have been so conveyed, transferred or leased as an entirety or virtually as an entirety to such transactionone Person; and
(ivvii) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, transfer or transfer lease and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause clauses (iiiiv) and (v) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to any such transaction solely between the Company (so long as no Capital Stock of the Company is distributed to and any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the CompanyRestricted Subsidiary. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transactionobligations hereunder.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Denbury Resources Inc), Indenture (Denbury Resources Inc)
When Company May Merge or Transfer Assets. (a) The Company ------------ ----------------------------------------- shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all of its properties and assets to, to any Personperson, unless:
(a) the person (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, transfer or lease the properties and assets of the Company substantially as an entirety (i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) if other than the Company, shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be is merged or the successor person to the Company and which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a leaselease and any obligations the Company may have under a supplemental indenture pursuant to Section 11.14, the Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.06, the Company, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Lowes Companies Inc), Indenture (Lowes Companies Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an a supplemental indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary thereof as a result of such transaction as having been Incurred by such the Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii3) immediately after giving pro forma effect to such transaction, either (xA) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (yB) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv4) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; , provided, however, that clause (iii3) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person unless:
(i1) 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 or an Affiliate of the Company), 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 SubsidiarySubsidiary of the Company, 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Guaranty Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary GuaranteeGuaranty;
(ii2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii3) the Company delivers to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Guaranty Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Healthsouth Corp), Indenture (Healthsouth Corp)
When Company May Merge or Transfer Assets. (a) The Unless otherwise provided for a particular Series of Securities by a resolution of the Board of Directors, a supplemental indenture or an Officers’ Certificate, the Company shall not not, directly or indirectly, consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all its assets assets, in one or a series of related transactions, to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture a supplemental theretoindenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv3) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause .
(iiib) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this IndentureIndenture (as modified or supplemented by a resolution of the Board of Directors, supplemental indenture or an Officers’ Certificate), and the predecessor Company, except other than in the case of a lease, shall be released from the obligation to pay the principal of and interest interest, if any, on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(bc) The Unless otherwise provided for a particular Series of Securities by a resolution of the Board of Directors, a supplemental indenture or an Officers’ Certificate, the Company shall not permit any Subsidiary Guarantor to to, directly or indirectly, consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, lease all or substantially all of its assets assets, in one or a series of related transactions, to any Person unless:
(i1) except in the case of a Subsidiary Guarantor (xi) that has been disposed of in its entirety to another Person (other than to the Company or an Affiliate of the Company), whether through a merger, consolidation or sale of Capital Stock or assets or (yii) that, as a result of the disposition of all or a portion of its Capital Stock, ceases to be a Subsidiary, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person corporation organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or thereof, the District of ColumbiaColumbia or any other jurisdiction under which such Subsidiary Guarantor was organized, and such Person (if not such Subsidiary Guarantor) shall expressly assume, by a Guarantee Agreementsupplemental indenture, executed and delivered to the Trustee, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, Subsidiary Guarantor under its Subsidiary Guarantee;
(ii2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii3) the Company delivers shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, supplemental indenture (if any, complies ) comply with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted .
(d) Notwithstanding the foregoing:
(1) any Subsidiary consolidating may consolidate with, merging merge into or transferring transfer all or part of its properties and assets to the Company or a any Subsidiary GuarantorGuarantor and
(2) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction within the United States of America, any State thereof or the District of Columbia to realize tax or other benefits.
Appears in 2 contracts
Samples: Indenture (Goodyear Tire & Rubber Co /Oh/), Indenture (Goodyear Export Inc.)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to any person, nor will the Company (so long as no Capital Stock permit any Subsidiary to enter into any such transaction or series of transactions if such transaction or series of transactions, in the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company aggregate, would result in another jurisdiction. For purposes of this Section 5.01, the a sale, lease, conveyance, assignment, transfer transfer, lease or other disposition of all or substantially all of the properties and assets of the Company and its Subsidiaries on a consolidated basis to any other person or persons, unless: either (1) the Company or such subsidiary shall be the surviving corporation or (2) the person (if other than the Company) formed by such consolidation or into which the Company or such Subsidiary is merged or the person which acquires by conveyance, transfer or lease the properties and assets of the Company or such Subsidiary substantially as an entirety (i) shall be 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 indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company or such Subsidiary under the Securities and this Indenture; immediately after giving effect to such transaction, no Default shall have occurred and be continuing; and the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been satisfied. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be or the applicable Subsidiary is merged or the successor person to the Company and 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 or the applicable Subsidiary under this Indenture, Indenture with the same effect as if such successor had been named as the Company or the applicable Subsidiary herein; and the predecessor Companythereafter, except in the case of a lease, the Company or the applicable Subsidiary shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.06, the Company, the applicable Subsidiary, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, release of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company the applicable Subsidiary. A Guarantor shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, into any Person or convey, transfer or lease, in one transaction or a series of transactions, all or lease its properties and assets substantially all of its assets to any Person unless:
(i) except in the case of a Subsidiary Guarantor (x) that has been disposed of in its entirety as an entity to another Person (other than to unless the Company or an Affiliate surviving Person assumes the obligations of such Guarantor and the Company), whether through surviving Person is 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person corporation organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of AmericaStates, or any State state thereof or the District of Columbia, and except if all of the assets or all of the common stock of such Person shall expressly assume, by Guarantor is sold to a Guarantee Agreementnon-affiliate of the Company, in a form satisfactory to which case the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantoris released.
Appears in 1 contract
Samples: Indenture (Mesa Air Group Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other Person or convey, transfer transfer, sell, lease or lease, in one transaction or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its properties and assets to, to any Person, unless:
(ia) either (A1) the Company shall be the surviving continuing corporation or (B2) the resulting, surviving or transferee Person (in each if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer or lease all or substantially all of clauses the properties and assets of the Company substantially as an entirety (A) or (B), the “Successor Company”i) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default or Event of Default, shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause (iii) shall not be applicable all conditions precedent set forth in this Indenture relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyanceassignment (excluding the grant of a security interest but including any foreclosure thereon), assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor Person formed by such consolidation or into which the Company shall be is merged or the successor Person to the Company and which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a leaselease and obligations the Company may have under a supplemental indenture, the Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 8.6, the Company, the Trustee and the successor Person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor Person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Indenture (Memberworks Inc)
When Company May Merge or Transfer Assets. (a) The ----------------------------------------- Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor --------- Company”") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the ------- United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii3) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction); and
(iv4) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii3) shall not be applicable to (A) a Restricted -------- ------- Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Indenture (Blum Capital Partners Lp)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”"SUCCESSOR COMPANY") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form 66 satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma PRO FORMA effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii3) immediately after giving pro forma PRO FORMA effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction); and
(iv4) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; providedPROVIDED, howeverHOWEVER, that clause (iii3) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person unless:
(i1) 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 or an Affiliate of the Company), whether through a merger, consolidation or sale of Capital Stock or assets or (y) thatassets, as a result if in connection therewith the Company provides an Officers' Certificate to the Trustee to the effect that the Company shall comply with its obligations under Section 4.06 in respect of the disposition of all or a portion of its Capital Stock, ceases to be a Subsidiarysuch disposition, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Guaranty Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary GuaranteeGuaranty;
(ii2) immediately after giving effect to such transaction or transactions on a pro forma PRO FORMA basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii3) the Company delivers to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Guaranty Agreement, if any, complies with this Indenture; provided.
(c) If at any time Parent Guarantees the Securities, howeverParent shall covenant in its Guaranty Agreement not to merge with or into, that this Section 5.01 shall not be applicable to or convey, transfer or lease, in one transaction or a Restricted Subsidiary consolidating withseries of transactions, merging into or transferring all or part substantially all of its properties and assets to any Person unless:
(1) the resulting, surviving or transferee Person (if not Parent) shall be a Person organized and existing under the laws of the jurisdiction under which Parent was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume all the obligations of Parent, if any, under the Parent Guaranty;
(2) immediately after giving effect to such transaction or transactions on a PRO FORMA basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(3) the Company delivers to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or a Subsidiary Guarantortransfer and such Guaranty Agreement, if any, complies with this Indenture.
Appears in 1 contract
Samples: Indenture (Monterey Carpets Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or intointo or wind up into (whether or not the Company is the surviving corporation), or conveysell, transfer or assign, transfer, lease, in one transaction convey or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its properties or assets in one or more related transactions to, any Person, Person unless:
(i) either (A) the Company shall be is the surviving corporation or the Person formed by or surviving any such consolidation or merger (B) if other than the resulting, surviving or transferee Person (in each of clauses (ACompany) or (B)to which such sale, the “Successor Company”) assignment, transfer, lease, conveyance or other disposition shall (1) be have been made is a corporation corporation, partnership or limited liability company organized and or existing under the laws of the United States of AmericaStates, any State thereof or state thereof, the District of Columbia Columbia, or any territory thereof (the Company or the Person, as the case may be, being herein called the “Successor Company”); provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized that in the jurisdictions permitted by this clause (1) and case where the surviving Person is not a corporation, a co-obligor of the SecuritiesSecurities is a corporation; provided further, that the Co-Issuer may not consolidate or merge with or into any entity other than a corporation satisfying such requirements for so long as the Company remains a limited liability company;
(ii) and the Successor Company (2if other than the Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all the obligations of the Company under this Indenture, the Security Documents and the Securities and this Indenturepursuant to supplemental indentures;
(iiiii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary of its Restricted Subsidiaries as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either
(A) the Successor Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a); or
(B) the Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would not be less than such ratio for the Issuers and their Restricted Subsidiaries immediately prior to such transaction;
(v) if the Successor Company is other than the Company, each Subsidiary Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Person’s obligations under this Indenture and the Securities;
(vi) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures and/or amendments or joinders with respect to the Security Documents (if any) comply with this Indenture;
(vii) the Successor Company causes such amendments, supplements or other instruments to be executed, delivered, filed and recorded, as applicable, in such jurisdictions as may be required by applicable law to preserve and protect the Lien of the Security Documents on the Collateral owned by or transferred to the Successor Company;
(viii) the Collateral owned by or transferred to the Successor Company shall (x) continue to constitute Collateral under this Indenture and the Security Documents, (y) be subject to the Lien in favor of the Notes Collateral Agent for the benefit of the Trustee and the Holders of the Securities, and (z) not be subject to any Lien other than Permitted Liens; and
(ix) the property and assets of the Person which is merged or consolidated with or into the Successor Company, to the extent that they are property or assets of the types which would constitute Collateral under the Security Documents, shall be treated as after-acquired property and the Successor Company shall take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required in this Indenture. The Successor Company (if other than the Company) shall succeed to, and be substituted for, the Company under this Indenture and the Securities, and the Company shall automatically be released and discharged from its obligations under this Indenture and the Securities. Satisfaction of the foregoing clauses (iii) and (iv) of this Section 5.01 shall not be required if (a) the Company or any Restricted Subsidiary shall consolidate with, merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company or to another Restricted Subsidiary, and (b) the Company shall merge or consolidate with an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Company in another state of the United States, the District of Columbia or any territory of the United States so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby (any transaction described in this sentence, a “Specified Merger/Transfer Transaction”).
(b) Subject to the provisions of Section 10.02(b) (which govern the release of a Subsidiary Guarantee upon the sale or disposition of a Restricted Subsidiary of the Company that is a Subsidiary Guarantor), the Co-Issuer shall not and each Guarantor shall not, and the Company shall not permit the Co-Issuer or any Guarantor to, consolidate or merge with or into or wind up into (whether or not the Co-Issuer or such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (x) the Co-Issuer or such Guarantor, as applicable, is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than the Co-Issuer or such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (such Person being herein called, as applicable, the “Successor Co-Issuer” or “Successor Guarantor”) and the Successor Co-Issuer or Successor Guarantor, as applicable (if other than the Co-Issuer or such Guarantor), expressly assumes all the obligations of the Co-Issuer or such Guarantor under this Indenture pursuant to a supplemental indenture or (y) such sale or disposition or consolidation or merger is not in violation of Section 4.06 (in which case clauses (ii) through (vi) of this Section 5.01(b) shall not apply);
(ii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Co-Issuer or Successor Guarantor or any of its Subsidiaries as a result of such transaction as having been Incurred by the Successor Co-Issuer or Successor Guarantor 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 pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(aCo-Issuer or Successor Guarantor (if other than the Co-Issuer or such Guarantor) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv) the Company shall have delivered or caused to be delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided;
(iv) the Successor Co-Issuer or Successor Guarantor causes such amendments, howeversupplements or other instruments to be executed, that clause delivered, filed and recorded, as applicable, in such jurisdictions as may be required by applicable law to preserve and protect the Lien of the Security Documents on the Collateral owned by or transferred to the Successor Co-Issuer or Successor Guarantor, as applicable;
(iiiv) the Collateral owned by or transferred to the Successor Co-Issuer or Successor Guarantor shall (a) continue to constitute Collateral under this Indenture and the Security Documents, (b) be subject to the Lien in favor of the Notes Collateral Agent for the benefit of the Trustee and the Holders of the Securities, and (c) not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed subject to any Person) or Lien other than Permitted Liens; and
(Bvi) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties property and assets of the Company on a Person which is merged or consolidated basiswith or into the Successor Co-Issuer or Successor Guarantor, to the extent that they are property or assets of the types which would constitute Collateral under the Security Documents, shall be deemed treated as after-acquired property and the Successor Guarantor shall take such action as may be reasonably necessary to cause such property and assets to be made subject to the transfer of all or substantially all Lien of the properties Security Documents in the manner and assets of to the Companyextent required in this Indenture. The Successor Company shall be the successor to the Company and Co-Issuer or Successor Guarantor shall succeed to, and be substituted for, the Co-Issuer or such Guarantor, as applicable, under this Indenture and may exercise every right the Co-Issuer’s obligations or such Guarantor’s Guarantee, and power of, the Company Co-Issuer or such Guarantor will automatically be released and discharged from its obligations under this Indenture. Notwithstanding the foregoing, (1) the Co-Issuer or a Guarantor may merge or consolidate with an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing such Person in another state of the United States, the District of Columbia or any territory of the United States, so long as the amount of Indebtedness of the Guarantor is not increased thereby, (2) a Guarantor may merge or consolidate with another Guarantor or the Company, and the predecessor Company(3) a Guarantor may convert into a corporation, except in the case of a leasepartnership, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenturelimited partnership, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries limited liability corporation or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness trust organized or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations organization of such SubsidiaryGuarantor. For the avoidance of doubt, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets apply to the Company or a Subsidiary GuarantorSafeway Acquisition.
Appears in 1 contract
When Company May Merge or Transfer Assets. (a) The Company ----------------------------------------- shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an a supplemental indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a);
(iv) or (y) the Consolidated Coverage Ratio for immediately after giving effect to such transaction, the Successor Company and its Restricted Subsidiaries would be equal to or greater shall have Consolidated Net Worth in an amount which is not less than such ratio for the Consolidated Net Worth of the Company and its Restricted Subsidiaries immediately prior to such transaction; and;
(ivv) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause and
(iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (Bvi) the Company merging with shall have delivered to the Trustee an Affiliate Opinion of Counsel to the Company solely effect that the Noteholders will not recognize income, gain or loss for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For Federal income tax 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 Company, which properties and assets, if held by the Company instead as a result of such Subsidiariestransaction and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would constitute all or substantially all of have been the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Companycase if such transaction had not occurred. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and but the predecessor Company, except Company in the case of a leaseconveyance, transfer or lease of all or substantially all its assets shall not be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, lease all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall will be a Person corporation organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person (if not such Subsidiary Guarantor) shall expressly assume, by a Guarantee Agreementsupplemental indenture, executed and delivered to the Trustee, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, Subsidiary Guarantor under its Subsidiary Guarantee;
; (ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued Incurred by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
and (iii) the Company delivers shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, supplemental indenture (if any, complies ) comply with this Indenture; provided.
(c) Notwithstanding the foregoing, however, that this Section 5.01 shall not be applicable to a (i) any Restricted Subsidiary consolidating may consolidate with, merging merge into or transferring transfer all or part of its properties and assets to the Company or a any Restricted Subsidiary Guarantorand (ii) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction to realize tax or other benefits.
Appears in 1 contract
Samples: Indenture (Wki Holding Co Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a);
(iv) or (y) the Consolidated Coverage Ratio for immediately after giving effect to such transaction, the Successor Company and its Restricted Subsidiaries would be equal to or greater shall have Consolidated Net Worth in an amount that is not less than such ratio for the Consolidated Net Worth of the Company and its Restricted Subsidiaries immediately prior to such transaction; and;
(ivv) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into is authorized or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed topermitted under, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.and
Appears in 1 contract
Samples: Indenture (American Pacific Corp)
When Company May Merge or Transfer Assets. (a) The Company ------------------------------------------ shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having 56 been Incurred by such the Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) except in the case of a merger the sole purpose of which is to change the Company's jurisdiction of incorporation, immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a);
(iv) or (y) the Consolidated Coverage Ratio for immediately after giving effect to such transaction, the Successor Company and its Restricted Subsidiaries would be equal to or greater shall have Consolidated Net Worth in an amount which is not less than such ratio for the Consolidated Net Worth of the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivv) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided. Notwithstanding the foregoing clauses (ii), however, that clause (iii) shall not be applicable to and (A) a iv), any Restricted Subsidiary consolidating may consolidate with, merging merge into or transferring transfer all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and but the predecessor Company, except Company in the case of a leaseconveyance, transfer or lease shall not be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii3) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction); and
(iv4) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person unless:
(i1) 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof hereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreementan amendment to this Indenture, in a form satisfactory acceptable to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary GuaranteeGuaranty;
(ii2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii3) the Company delivers to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreementamendment to this Indenture, if any, complies with this Indenture; providedPROVIDED, howeverHOWEVER, that this Section 5.01 shall the preceding restrictions will not be applicable to a Restricted if, in connection with such consolidation, merger, conveyance, transfer or lease, the Subsidiary consolidating with, merging into or transferring all or part of Guarantor will be released from its properties and assets to the Company or a Subsidiary Guarantorobligations under Section 11.06.
Appears in 1 contract
Samples: Indenture (Interactive Media Corp)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other Person or convey, transfer transfer, sell, lease or lease, in one transaction or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its properties and assets to, to any Person, unless:
(i) either (A) the Company shall be is the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company is organized and validly existing under the laws of the United States of AmericaStates, any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this IndentureColumbia;
(ii) the Person formed by or surviving any such consolidation or merger (if other than the Company) assumes all of the Company's obligations under the Notes, this Indenture and the Registration Rights Agreement under a supplemental indenture in a form reasonably satisfactory to the Trustee;
(iii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer, sale, lease or transfer and other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this IndentureARTICLE VII and that all conditions precedent herein provided for relating to such transaction have been satisfied; provided, however, and
(v) each Guarantor shall have confirmed in writing that clause (iii) its Subsidiary Guarantee shall not be applicable continue to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets apply to the Company (so long as no Capital Stock obligations of the Company is distributed to or the surviving Person in accordance with the Notes and the Indenture.
(b) The successor Person formed by any Person) consolidation or (B) into which the Company merging with an Affiliate of is merged or the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes of this Section 5.01successor Person to which such conveyance, the transfer, sale, lease, conveyance, assignment, transfer lease or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and is made shall succeed to, and be substituted for, and may exercise every right and power of, of the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a lease, the Company shall be released discharged from the obligation to pay the principal of all obligations and interest on the Securities. For all purposes of covenants under this Indenture, Subsidiaries the Notes and the Registration Rights Agreement. Subject to Section 11.6, the Company, the Trustee and the successor Person shall enter into a supplemental indenture to evidence the succession and substitution of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor Person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Indenture (Greenbrier Companies Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Senior Subordinated Notes Trustee, in form satisfactory to the Senior Subordinated Notes Trustee, all the obligations of the Company under the Securities Senior Subordinated Notes and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transactiontransac tion), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (xA) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (yB) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(iv) immediately after giving effect to such transaction, the Successor Company shall have Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Company immediately prior to such transaction; and
(ivv) the Company shall have delivered to the Senior Subordinated Notes Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and but the predecessor Company, except Company in the case of a leaseconveyance, transfer or lease of all or substantially all its assets shall not be released from the obligation to pay the principal of and interest on the SecuritiesSenior Subordinated Notes. For all purposes of this IndentureNotwithstanding clause (iii) above, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries a Wholly Owned Subsidiary may be consolidated with or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of merged into the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The the Company shall not permit any Subsidiary Guarantor to may consolidate with or merge with or intointo (A) another Person, if such Person is a single purpose corporation that has not conducted any business or conveyIncurred any Indebtedness or other liabilities and such transaction is being consummated solely to change the state of incorporation of the Company and (B) Holdings; provided, transfer or leasehowever, in one transaction or a series of transactionsthat, all or substantially all of its assets to any Person unless:
(i) except in the case of a Subsidiary Guarantor clause (B), (x) that has been disposed Holdings shall not have owned any assets other than the Capital Stock of in the Company (and other immaterial assets incidental to its entirety to another Person ownership of such Capital Stock) or conducted any business other than owning the Capital Stock of the Company, (y) Holdings shall not have any Indebtedness or other liabilities (other than ordinary course liabilities incidental to its ownership of the Company or an Affiliate Capital Stock of the Company), whether through a merger, consolidation or sale of Capital Stock or assets or ) and (y) that, as a result of the disposition of all or a portion of its Capital Stock, ceases to be a Subsidiary, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(iiz) immediately after giving effect to such transaction consolidation or transactions on merger, the Successor Company shall have a pro forma basis (and treating any Indebtedness which becomes an obligation Consolidated Coverage Ratio that is not less than the Consolidated Coverage Ratio of the resulting, surviving Company immediately prior to such consolidation or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantormerger.
Appears in 1 contract
Samples: Indenture (Wesco Distribution Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other Person or convey, transfer transfer, sell, lease or lease, in one transaction or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its properties and assets to, to any Person, unless:
(ia) either (A1) the Company shall be the surviving continuing corporation or (B2) the resulting, surviving or transferee Person (in each if other than the Company) formed by such consolidation or into which the Company is merged or the Person that acquires by conveyance, transfer or lease all or substantially all of clauses the properties and assets of the Company (A) or (B), the “Successor Company”i) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default Event of Default, and no event that, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor Person formed by such consolidation or into which the Company shall be is merged or the successor Person to the Company and which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a leaselease and obligations the Company may have under a supplemental indenture, the Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.06, the Company, the Trustee and the successor Person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor Person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Indenture (Maxtor Corp)
When Company May Merge or Transfer Assets. (a) The ----------------------------------------- Company shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or lease its properties and assets substantially all its assets to, as an entirety to any Personperson, unless:
(i) either (A1) the Company shall be the surviving continuing corporation or (B2) the resultingperson (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, surviving transfer or transferee Person lease the properties and assets of the Company substantially as an entirety (in each of clauses (A) or (B), the “Successor Company”i) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia Columbia, or (provided thatB) if such merger, if consolidation or other transaction would not impair the Successor Company is a limited liability companyrights of Securityholders, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) any other country and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries of (other than to the CompanyCompany or another Subsidiary), which properties and assetswhich, if held such assets were owned by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be is merged or the successor person to the Company and which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a leaselease and obligations the Company may have under a supplemental indenture pursuant to Section 10.14, the Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.6, the Company, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Indenture (Reebok International LTD)
When Company May Merge or Transfer Assets. (a) The Neither the Parent nor the Company shall not consolidate with will, directly or merge with or into, or convey, transfer or leaseindirectly, in one a single transaction or a series of related transactions, directly (x) consolidate or indirectlymerge with or into any Person (other than a merger that satisfies the requirements of Section 5.01(a)(1) with a Wholly Owned Restricted Subsidiary solely for the purpose of changing the Parent’s or the Company’s jurisdiction of incorporation, as the case may be, to another State of the United States), or sell, lease, transfer, convey or otherwise dispose of or assign all or substantially all its of the assets toof the Parent or the Parent and the Restricted Subsidiaries (taken as a whole) or the Company or the Company and the Restricted Subsidiaries that are Subsidiaries of the Company (taken as a whole), as the case may be, to any PersonPerson or (y) adopt a Plan of Liquidation unless, unlessin either case:
(i1) either (Aa) the Company shall Parent or the Company, as the case may be, will be the surviving corporation or continuing Person or (Bb) the resultingPerson formed by or surviving such consolidation or merger or to which such sale, surviving lease, conveyance or transferee other disposition shall be made (or, in the case of a Plan of Liquidation, any Person to which assets are transferred) (in each of clauses (A) or (B)collectively, the “Successor CompanySuccessor”) shall (1) be is a corporation or limited liability company organized and existing under the laws of any State of the United States of America, any State thereof America or the District of Columbia (Columbia, and the Successor expressly assumes, by supplemental indenture in form and substance satisfactory to the Trustee, all of the obligations of the Company or the Parent, as the case may be, under the Securities or the Parent’s Security Guarantee, as applicable, and this Indenture; provided that, if in the case of the Company, at any time the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary co-issuer of such Person which shall be the Securities that is a corporation organized in and existing under the jurisdictions permitted by this clause (1) and a co-obligor laws of any State of the Securities) and United States of America or the District of Columbia;
(2) expressly assume, by an indenture supplemental thereto, executed immediately prior to and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction and the assumption (if applicable) of the obligations as set forth in Section 5.01(a)(1)(b) and treating the incurrence of any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction)to be incurred in connection therewith, no Default shall have occurred and be continuing;; and
(iii3) immediately after and giving pro forma effect to such transactiontransaction and the assumption (if applicable) of the obligations set forth in Section 5.01(a)(1)(b) and the incurrence of any Indebtedness to be incurred in connection therewith, either and the use of any net proceeds therefrom on a pro forma basis, (xa) the Successor Company would be able to Incur an additional Parent or the Successor, as the case may be, could incur $1.00 of Coverage additional Indebtedness pursuant to Section 4.03(a) or the Ratio Exception, (yb) the Consolidated Fixed Charge Coverage Ratio for of the Parent or the Successor Company and its Restricted Subsidiaries would be equal to or is greater than such ratio for the Company and its Restricted Subsidiaries Parent immediately prior to such transaction; and, or (c) the ratio of Consolidated Indebtedness to Consolidated Tangible Net Worth of the Parent or the Successor is less than such ratio for the Parent immediately prior to such transaction. For purposes of this Section 5.01, any Indebtedness of the Successor which was not Indebtedness of the Parent or the Company, as the case may be, immediately prior to the transaction shall be deemed to have been incurred in connection with such transaction.
(ivb) No Subsidiary Guarantor may consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or not affiliated with such Subsidiary Guarantor, unless (1) either, (a) such Subsidiary Guarantor will be the surviving or continuing Person or (b) the Company shall have delivered Person formed by or surviving any such consolidation or merger assumes, by supplemental indenture in form and substance satisfactory to the Trustee an Officers’ Certificate Trustee, all of the obligations of such Subsidiary Guarantor under the Security Guarantee of such Subsidiary Guarantor and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; providedand (2) immediately after giving effect to such transaction no Default shall have occurred and be continuing. Notwithstanding the foregoing, however, that clause (iiia) shall not be applicable to (A) a any Restricted Subsidiary consolidating with, merging (other than the Company) may merge into the Parent or transferring all or part of its properties another Restricted Subsidiary and assets to (b) the Company (so long as no Capital Stock requirements of the Company is distributed immediately preceding paragraph will not apply to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and transaction pursuant to which such Guarantor is permitted to be released from its Security Guarantee in accordance with the sole effect of reincorporating the Company in another jurisdictionprovisions described under Section 10.07. For purposes of this Section 5.01, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition otherwise, in a single transaction or series of transactions) of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Restricted Subsidiaries, would the Equity Interests of which constitute all or substantially all of the properties and assets of the Company on a consolidated basisParent or the Company, shall will be deemed to be the transfer of all or substantially all of the properties and assets of the Parent or the Company, as the case may be. The Successor Company shall be the successor to Upon any consolidation, combination or merger of the Company and shall or a Guarantor, or any transfer of all or substantially all of the assets of the Parent or the Company in accordance with the foregoing, in which the Company or such Guarantor is not the continuing obligor under the Securities or its Security Guarantee, the surviving entity formed by such consolidation or into which the Company or such Guarantor is merged or to which the conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company or such Guarantor under this Indenture, the Securities and the predecessor CompanySecurity Guarantees with the same effect as if such surviving entity had been named therein as the Company or such Guarantor and, except in the case of a conveyance, transfer or lease, shall the Company or such Guarantor, as the case may be, will be released from the obligation to pay the principal of and interest on the Securities. For all purposes Securities or in respect of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assetsSecurity Guarantee, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), whether through a merger, consolidation ’s 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized Guarantor’s other obligations and existing covenants under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of AmericaSecurities, or any State thereof or the District of Columbia, this Indenture and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiaryits Security Guarantee, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantorapplicable.
Appears in 1 contract
Samples: Indenture (William Lyon Homes)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially substan tially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or corporation, partnership, limited liability company or business trust organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transactiontransac tion), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction); and
(iv) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and . Notwithstanding the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
foregoing clauses (ii) immediately after giving effect to such transaction or transactions on a pro forma basis and (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transactioniii), no Default shall have occurred and be continuing; and
(iiia) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counselany Restricted Subsidiary may consolidate with, each stating that such consolidation, merger merge into or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantorand (b) the Company may merge with an Affiliate incorporated for the purpose of reincorporating the Company in another jurisdiction.
Appears in 1 contract
Samples: Indenture (Ta Operating Corp)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of related transactions, directly or indirectly, all or substantially all the assets of the Company and its assets Restricted Subsidiaries, taken as a whole, to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;; 71 62
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a);
(iv) or (y) the Consolidated Coverage Ratio for immediately after giving effect to such transaction, the Successor Company and its Restricted Subsidiaries would be equal shall have Adjusted Consolidated Net Tangible Assets that are not less than the Adjusted Consolidated Net Tangible Assets prior to such transaction;
(v) in the case of a conveyance, transfer or greater than such ratio for lease of all or substantially all the assets of the Company and its Restricted Subsidiaries immediately prior Subsidiaries, taken as a whole, such assets shall have been so conveyed, transferred or leased as an entirety or virtually as an entirety to such transactionone Person; and
(ivvi) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause clauses (iii) and (iv) shall not be applicable to (A) a Restricted Subsidiary consolidating withany such transaction solely between DRI, merging into or transferring all or part of its properties and assets to the Company and any Restricted Subsidiary; provided further, however, that clause (so long as no Capital Stock i)(A) shall not be applicable to any merger of the Company with and into DRI in connection with a transaction in which DRI, substantially concurrently with such merger, becomes (or is distributed to any Personmerged with and into) or (B) a Person organized and existing under the Company merging with an Affiliate laws of the Company solely for United States of America, or any State thereof or the purpose and with the sole effect District of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the CompanyColumbia. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, 72 63 and may exercise every right and power of, the Company under this Indenture, and but the predecessor Company, except Company in the case of a lease, lease shall not be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Indenture (Denbury Management Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactionsnot, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not the Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
(i) either (A) the Company shall be is the surviving corporation Person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (B) if other than the resulting, surviving or transferee Person (in each of clauses (ACompany) or (B)to which such sale, the “Successor Company”) assignment, transfer, lease, conveyance or other disposition shall (1) be have been made is a corporation corporation, partnership or limited liability company organized and or existing under the laws of the United States of AmericaStates, any State thereof or state thereof, the District of Columbia Columbia, or any territory thereof (the Company or such Person, as the case may be, being herein called the “Successor Company”); provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized that in the jurisdictions permitted by this clause (1) and case where the surviving Person is not a corporation, a co-obligor of the SecuritiesSecurities is a corporation;
(ii) and the Successor Company (2if other than the Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all the obligations of the Company under this Indenture and the Securities and this Indenturepursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(iiiii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary of its Restricted Subsidiaries as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transaction), ) no Default or shall have occurred and be continuing;
(iiiiv) 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 (xand 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 able permitted to Incur an additional at least $1.00 of Coverage additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a) or ); or
(yB) the Consolidated Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Securities;
(vi) if the Successor Company is not organized as a corporation after such transaction, a successor corporation that is a Subsidiary of the Successor Company shall continue to be co-obligor of the Securities and shall have by supplemental indenture confirmed its obligation under this Indenture and the Securities; and
(ivvii) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture indentures (if any) comply with this Indenture; provided. The Successor Company (if other than the Company) shall succeed to, howeverand be substituted for, that clause the Company under this Indenture and the Securities, and in such event the Company will automatically be released and discharged from its obligations under this Indenture and the Securities. Notwithstanding the foregoing clauses (iii) shall not be applicable to and (Aiv) a of this Section 5.01, (a) any Restricted Subsidiary consolidating withmay merge, merging into consolidate or transferring amalgamate with or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary, and (so long as no Capital Stock of the Company is distributed to any Person) or (Bb) the Company merging may merge, consolidate or amalgamate with an Affiliate of the Company incorporated solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes state of this Section 5.01the United States, the District of Columbia or any territory of the United States so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. This Article 5 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and its Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.02(b) (which govern the release of a Guarantee upon the sale or disposition of a Restricted Subsidiary of the Company that is a Guarantor), neither Rexnord nor any Guarantor shall, and the Company shall not permit Rexnord or any Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not Rexnord or such Guarantor is the surviving Person), or sell, assign, transfer, lease, conveyanceconvey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person (other than any such sale, assignment, transfer transfer, lease, conveyance or disposition in connection with the Apollo Transactions) unless:
(i) either (A) Rexnord or such Guarantor, as the case may be, is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than Rexnord or such Guarantor, as the case may be) 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 (Rexnord, such Guarantor or such Person, as the case may be, being herein called the “Successor Co-Issuer” in the case of a consolidation, amalgamation, merger, winding up or sale, assignment, transfer, lease, conveyance or other disposal of all or substantially all of the properties and or assets of one Rexnord, and the “Successor Guarantor,” in the case of a consolidation, amalgamation, merger, winding up or more Subsidiaries of the Companysale, which properties and assetsassignment, if held by the Company instead of such Subsidiariestransfer, would constitute all lease, conveyance or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer other disposal of all or substantially all of the properties and or assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, a Guarantor) and the predecessor CompanySuccessor Co-Issuer or Successor Guarantor (if other than Rexnord or such Guarantor, except in as the case may be) expressly assumes all the obligations of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries Rexnord or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assetssuch Guarantor, as the case may be, of under this Indenture and, if applicable, such Guarantors’ Guarantee pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
Trustee, or (b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person unless:
(i) except other than in the case of a Subsidiary Guarantor (x) that has been disposed sale, disposition, consolidation, amalgamation or merger of Rexnord, such sale or disposition or consolidation, amalgamation or merger is not in its entirety to another Person (other than to the Company or an Affiliate violation of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary GuaranteeSection 4.06;
(ii) immediately after giving effect the Successor Co-Issuer (if other than Rexnord) expressly assumes all the obligations of Rexnord under this Indenture and the Securities pursuant to such transaction supplemental indentures or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of other documents or instruments in form reasonably satisfactory to the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuingTrustee; and
(iii) the Company delivers Successor Co-Issuer or Successor Guarantor (if other than Rexnord or such Guarantor, as the case may be) shall have delivered or caused to be delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such Guarantee Agreement, supplemental indenture (if any, complies ) comply with this Indenture; provided. Except as otherwise provided in this Indenture, howeverthe Successor Co-Issuer or Successor Guarantor (if other than Rexnord or such Guarantor, that as the case may be) will succeed to, and be substituted for, Rexnord or such Guarantor, as the case may be, under this Section 5.01 shall Indenture and, if applicable, such Guarantor’s Guarantee, and Rexnord or such Guarantor, as the case may be, will automatically be released and discharged from its obligations under this Indenture and, if applicable, such Guarantor’s Guarantee. Notwithstanding the foregoing, (1) Rexnord or a Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating Rexnord or such Guarantor in another state of the United States, the District of Columbia or any territory of the United States so long as the amount of Indebtedness of Rexnord or the Guarantor is not be applicable to increased thereby and (2) Rexnord or a Restricted Subsidiary consolidating withGuarantor may merge, merging amalgamate or consolidate with another Guarantor or the Company. In addition, notwithstanding the foregoing, Rexnord or any Guarantor may consolidate, amalgamate or merge with or into or transferring wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or part substantially all of its properties and or assets to (collectively, a “Transfer”) to, (x) the Company, Rexnord or any Guarantor or (y) any Restricted Subsidiary of the Company that is not Rexnord or a Subsidiary Guarantor; provided that at the time of each such Transfer pursuant to clause (y) the aggregate amount of all such Transfers since the Issue Date shall not exceed 5.0% of the consolidated assets of the Company, Rexnord and the Guarantors as shown on the most recent available balance sheet of the Company and the Restricted Subsidiaries after giving effect to each such Transfer and including all Transfers occurring from and after the Issue Date (excluding Transfers in connection with the Apollo Transactions).
Appears in 1 contract
Samples: Indenture (RBS Global Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred incurred by such the Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii3) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would either (A) be able to Incur incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (yB) the Consolidated have an EBITDA Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or that is greater than such ratio for the actual EBITDA Coverage Ratio of the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv4) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii3) shall will not be applicable to (A) a Restricted Subsidiary of the Company consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person Person, unless:
(i1) except in the case of a Subsidiary Guarantor (xA) that has been disposed of in its entirety to another Person (other than to the Company or an Affiliate of the Company), whether through a merger, consolidation or sale of Capital Stock or assets or (yB) that, as a result of the disposition of all or a portion of its Capital StockStock (other than to an Affiliate of the Company), ceases to be a Subsidiary, 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Guaranty Agreement, in a form reasonably satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
Guaranty; (ii2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
and (iii3) the Company delivers to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Guaranty Agreement, if any, complies comply with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of related transactions, directly or indirectly, all or substantially all the assets of the Company and its assets Restricted Subsidiaries, taken as a whole, to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and (provided that, if B) the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a);
(iv) or (y) the Consolidated Coverage Ratio for immediately after giving effect to such transaction, the Successor Company and its Restricted Subsidiaries would be equal shall have Adjusted Consolidated Net Tangible Assets that are not less than the Adjusted Consolidated Net Tangible Assets prior to such transaction;
(v) in the case of a conveyance, transfer or greater than such ratio for lease of all or substantially all the assets of the Company and its Restricted Subsidiaries immediately prior Subsidiaries, taken as a whole, such assets shall have been so conveyed, transferred or leased as an entirety or virtually as an entirety to such transactionone Person; and
(ivvi) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, transfer or transfer lease and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause clauses (iii) and (iv) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to any such transaction solely between the Company (so long as no Capital Stock of the Company is distributed to and any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the CompanyRestricted Subsidiary. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Indenture (Denbury Resources Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Company) shall expressly assume, by a supplemental indenture hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Notes and this Indenture;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the Successor Company would be able to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a); and
(iv) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. The Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture.
(b) The Company shall not permit any Guarantor to consolidate with or merge with or into, or convey, transfer or lease all or substantially all of its assets to any Person unless: (i) in the case of any Guarantor that is a Domestic Subsidiary, the resulting, surviving or transferee Person will be a corporation, partnership or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided thatColumbia, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of and such Person which (if not such Guarantor) shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture a supplemental theretoindenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company such Guarantor under the Securities and this Indenture;
its Note Guarantee; (ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company resulting, surviving or any Subsidiary transferee Person as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary Person at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
; and (iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) the foregoing shall not apply to any such consolidation or merger with or into, or conveyance, transfer or lease to, any Person if the resulting, surviving or transferee Person will not be applicable to a Subsidiary of the Company and the other terms of this Indenture, including Section 4.06, are complied with.
(Ac) a Notwithstanding the foregoing, (i) any Restricted Subsidiary consolidating may consolidate with, merging merge into or transferring transfer all or part of its properties and assets to the Company; (ii) nothing herein shall limit any conveyance, transfer or lease of assets between or among any of the Company and the Guarantors; and (so long as no iii) the foregoing clause (a)(iii) of this Section 5.01 shall not prohibit a merger between the Company and a Person that owns all of the Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company created solely for the purpose and with of holding the sole effect of reincorporating the Company in another jurisdiction. 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 Capital Stock of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this the other terms of Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating 5.01(a) are complied with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Indenture (Reptron Electronics Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactionsnot, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not the Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets toin one or more related transactions, to any Person, Person unless:
(i) either (A) the Company shall be is the surviving corporation Person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (B) if other than the resulting, surviving or transferee Person (in each of clauses (ACompany) or (B)to which such sale, the “Successor Company”) assignment, transfer, lease, conveyance or other disposition shall (1) be have been made is a corporation corporation, partnership or limited liability company organized and or existing under the laws of the United States of AmericaStates, any State thereof or state thereof, the District of Columbia Columbia, or any territory thereof (provided thatthe Company or such Person, if as the case may be, being herein called the “Successor Company”);
(ii) the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in (if other than the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2Company) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, assumes all the obligations of the Company under this Indenture, the Securities and this Indenturethe Security Documents pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(iiiii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary of its Restricted Subsidiaries as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transaction), ) no Default or Event of Default shall have occurred and be continuing;
(iiiiv) 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 (xand 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 able permitted to Incur an additional at least $1.00 of Coverage additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a) or ); or
(yB) the Consolidated Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture in form reasonably satisfactory to the Trustee confirmed that its Note Guaranty shall apply to such Person’s obligations under this Indenture, the Securities and the Security Documents; and
(ivvi) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture indentures (if any) comply with this Indenture; provided. The Successor Company (if other than the Company) shall succeed to, howeverand be substituted for, that clause the Company under this Indenture and the Securities, and in such event the Company will automatically be released and discharged from its obligations under this Indenture and the Securities. Notwithstanding the foregoing clauses (iii) shall not be applicable to and (Aiv) a of this Section 5.01, (a) any Restricted Subsidiary consolidating withmay merge, merging into consolidate or transferring amalgamate with or transfer all or part of its properties and assets to the Company or to another Restricted Subsidiary, and (so long as no Capital Stock of the Company is distributed to any Person) or (Bb) the Company merging may merge, consolidate or amalgamate with an Affiliate of the Company incorporated solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes state of this Section 5.01the United States, the District of Columbia or any territory of the United States or may convert into a limited liability company, so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. This Article 5 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and its Restricted Subsidiaries.
(b) Finance Co. may not, directly or indirectly, consolidate, amalgamate or merge with or into, or sell, assign, transfer, 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, any Person, unless:
(i) Finance Co. is the surviving person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Finance Co.) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation organized or existing under the laws of the CompanyUnited States, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power ofany state thereof, the Company under this IndentureDistrict of Columbia, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of or any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries territory thereof (Finance Co. or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assetssuch Person, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or being herein called a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company“Successor Co-Issuer”), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) the Successor Co-Issuer (if other than Finance Co.) expressly assumes all the obligations of Finance Co. under this Indenture, the Securities and the Security Documents pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall or Event of Default will have occurred and be continuing; and
(iiiiv) the Company delivers Successor Co-Issuer (if other than Finance Co.) shall have delivered or caused to be delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such Guarantee Agreement, supplemental indenture (if any, complies ) comply with this Indenture; provided, however, that this .
(c) Subject to the provisions of Section 5.01 shall not be applicable to 12.02(b) (which govern the release of a Note Guaranty upon the sale or disposition of a Restricted Subsidiary consolidating withof the Company that is a Guarantor), merging no Guarantor shall, and the Company shall not permit any Guarantor to, consolidate, amalgamate or merge with or into or transferring wind up into (whether or not such Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or part substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Guarantor, as the case may be, is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Guarantor, as the case may be) 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 (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor,” in the case of a consolidation, amalgamation, merger, winding up or sale, assignment, transfer, lease, conveyance or other disposal of all or substantially all of the properties or assets of a Guarantor) and assets the Successor Guarantor (if other than such Guarantor) expressly assumes all the obligations of such Guarantor under this Indenture, the Security Documents and, if applicable, such Guarantors’ Note Guaranty pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee, or (B) such sale or disposition or consolidation, amalgamation or merger is not in violation of Section 4.06; and
(ii) the Successor Guarantor (if other than such Guarantor) shall have delivered or caused to be delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Guarantor (if other than such Guarantor) will succeed to, and be substituted for, such Guarantor, under this Indenture and, such Guarantor’s Note Guaranty, and such Guarantor, will automatically be released and discharged from its obligations under this Indenture and, such Guarantor’s Note Guaranty. Notwithstanding the foregoing, (1) a Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Guarantor in another state of the United States, the District of Columbia or any territory of the United States or may convert into a limited liability company so long as the amount of Indebtedness of the Guarantor is not increased thereby and (2) a Guarantor may merge, amalgamate or consolidate with another Guarantor or an Issuer. In addition, notwithstanding the foregoing, any Guarantor may consolidate, amalgamate or merge with or into or wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to, any Restricted Subsidiary of the Company that is not Finance Co. or a Subsidiary Guarantor; provided that at the time of each such Transfer the aggregate amount of all such Transfers since the Issue Date shall not exceed 5.0% of the consolidated assets of the Company, Finance Co. and the Guarantors as shown on the most recent available balance sheet of the Company and the Restricted Subsidiaries after giving effect to each such Transfer and including all Transfers occurring from and after August 1, 2006 (excluding Transfers in connection with the Acquisition Transactions).
Appears in 1 contract
Samples: Indenture (Verso Paper Corp.)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii3) immediately after giving pro forma effect to such transaction, either (xa) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (yb) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would not be equal to or greater less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv4) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause clauses (iii2) shall and (3) will not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company or the Successor Company (if not the Company) is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except Company in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person unless:
(i1) 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Guaranty Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary GuaranteeGuaranty and this Indenture;
(ii2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii3) the Company delivers to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Guaranty Agreement, if any, complies with this Indenture; provided.
(c) So long as the Parent Guaranty is in effect, however, that this Section 5.01 Parent shall not be applicable to merge with or into, or convey, transfer or lease, in one transaction or a Restricted Subsidiary consolidating withseries of transactions, merging into or transferring all or part substantially all of its properties and assets to any Person unless:
(1) the resulting, surviving or transferee Person (if not Parent) shall be a Person organized and existing under the laws of the jurisdiction under which Parent was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume all the obligations of Parent, if any, under the Parent Guaranty; and
(2) the Company delivers to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or a Subsidiary Guarantortransfer and such Guaranty Agreement, if any, complies with this Indenture.
Appears in 1 contract
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of related transactions, directly or indirectly, all or substantially all the assets of the Company and its assets Restricted Subsidiaries, taken as a whole, to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and (provided that, if B) the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in a form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) if as a result of such transaction the Securities become convertible into Common Stock or other securities issued by a third party, such third party assumes or fully and unconditionally guarantees all obligations of the Company or any successor under this Indenture and the Securities;
(iii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iiiiv) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a);
(v) or (y) the Consolidated Coverage Ratio for immediately after giving effect to such transaction, the Successor Company and its Restricted Subsidiaries would be equal shall have Adjusted Consolidated Net Tangible Assets that are not less than the Adjusted Consolidated Net Tangible Assets prior to such transaction;
(vi) in the case of a conveyance, transfer or greater than such ratio for lease of all or substantially all the assets of the Company and its Restricted Subsidiaries immediately prior Subsidiaries, taken as a whole, such assets shall have been so conveyed, transferred or leased as an entirety or virtually as an entirety to such transactionone Person; and
(ivvii) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, transfer or transfer lease and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause clauses (iiiiv) and (v) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to any such transaction solely between the Company (so long as no Capital Stock of the Company is distributed to and any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the CompanyRestricted Subsidiary. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transactionobligations hereunder.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Indenture (Denbury Resources Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of related transactions, directly or indirectly, all or substantially all the assets of the Company and its assets Restricted Subsidiaries, taken as a whole, to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and (provided that, if B) the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trusteesuch other acknowledgments, in form satisfactory to the Trusteejoinder agreements or other documents as are required, all the obligations of the Company under the Securities and this IndentureNote Documents;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a);
(iv) or (y) the Consolidated Coverage Ratio for immediately after giving effect to such transaction, the Successor Company and its Restricted Subsidiaries would be equal shall have Adjusted Consolidated Net Tangible Assets that are not less than the Adjusted Consolidated Net Tangible Assets prior to such transaction;
(v) in the case of a conveyance, transfer or greater than such ratio for lease of all or substantially all the assets of the Company and its Restricted Subsidiaries immediately prior Subsidiaries, taken as a whole, such assets shall have been so conveyed, transferred or leased as an entirety or virtually as an entirety to one Person;
(vi) the Successor Company (if other than the Company) shall take such transactionaction (or agree to take such action) as may be reasonably necessary to cause any property or assets that constitute Collateral owned by or transferred to the Successor Company to be subject to the Parity Liens in the manner and to the extent required under the Note Documents; and
(ivvii) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, transfer or transfer lease and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause clauses (iii) and (iv) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to any such transaction solely between the Company (so long as no Capital Stock of the Company is distributed to and any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the CompanyRestricted Subsidiary. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this IndentureIndenture and the other Note Documents, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transactionobligations thereunder.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Indenture (Denbury Resources Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other Person or convey, transfer transfer, sell, lease or lease, in one transaction or a series otherwise dispose of transactions, directly or indirectly, all or its properties and assets substantially all its assets to, as an entirety to any Personperson, unless:
(ia) either (A1) the Company shall be the surviving continuing corporation or (B2) the resulting, surviving or transferee Person (in each if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer or lease the properties and assets of clauses the Company substantially as an entirety (A) or (B), the “Successor Company”i) shall (1) be a corporation or limited liability company organized and validly existing under the laws of (A) the United States of America, or any State thereof or the District of Columbia or (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1B) and a co-obligor of the Securities) Canada or any province or territory thereof and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such (A) consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause all conditions precedent herein provided for relating to such transaction have been satisfied and (iiiB) shall in the case of a merger or consolidation in which the Company is not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties the continuing corporation and assets in which the successor to the Company (so long as no Capital Stock is an entity organized under the laws of Canada or any province or territory thereof, that such merger will not result in any material adverse tax consequences to any Holders of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionSecurities. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor Person formed by such consolidation or into which the Company shall be is merged or the successor Person to the Company and which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a leaselease and obligations the Company may have under a supplemental indenture, the Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.6, the Company, the Trustee and the successor Person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor Person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B1) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii3) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction); and
(iv4) the Company shall have delivered to the Trustee an Officers’ ' Certificate of the Company and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii3) shall will not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or a Wholly Owned Subsidiary or (B) the Company consolidating or merging with an Affiliate of the Company solely principally for the purpose and with the sole principal effect of reincorporating the Company in another jurisdictionjurisdiction or (C) the Company merging with or into a Wholly Owned Subsidiary. For purposes of this Section 5.015.01(a), the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation its obligations to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of or transactions, all or substantially all of its assets to to, any Person Person, unless:
(i1) 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 or an Affiliate of the Company), whether through a merger, consolidation or sale of Capital Stock or assets or (y) thatassets, as a result 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 the disposition of all or a portion of its Capital Stock, ceases to be a Subsidiarysuch disposition, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing (A) under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.organized,
Appears in 1 contract
Samples: Indenture (Amis Holdings Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially substan tially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Company's Consolidated Coverage Leverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or is not greater than such ratio for the Company and its Restricted Subsidiaries Company's Consolidated Leverage Ratio immediately prior to such transaction; and
(iv) the Company shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and but the predecessor Company, except Company in the case of a leaseconveyance, transfer or lease shall not be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) will be a corporation or limited liability company Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in (if not the jurisdictions permitted by this clause (1Company) and a co-obligor of the Securities) and (2) will expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Securities and this the Indenture;
; (ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by such the Successor Company or such Restricted Subsidiary at the time of such transaction), no Default shall will have occurred and be continuing;
; (iii) immediately after giving pro forma effect to such transaction, either (x) the Consolidated Coverage Ratio of the Successor Company would be able at least equal to Incur an additional $1.00 the greater of Coverage Indebtedness pursuant (A) 1.75:1.00 and (B) a ratio equal to Section 4.03(a) or (y) 75% of the actual Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for of the Company as of such date of determination; and its Restricted Subsidiaries immediately prior to such transaction; and
(iv) each Note Guarantor (other than any party to any such merger) shall have delivered a written instrument in form and substance reasonably satisfactory to the Trustee confirming its Note Guarantee; and (v) the Company shall will have delivered to the Trustee an Officers’ Officer's Certificate and an Opinion of Counsel, each stating to the effect that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this the Indenture; provided, however, provided that clause (x) in giving such opinion such counsel may rely on such Officer's Certificate as to any matters of fact (including without limitation as to compliance with the foregoing clauses (ii) and (iii)), and (y) shall not no Opinion of Counsel will be applicable to (A) required for a Restricted Subsidiary consolidating withconsolidation, merging into merger or transferring all or part transfer described in the last paragraph of its properties and assets to the Company (so long as no Capital Stock this Section 5.
1. Any Indebtedness that becomes an obligation of the Company or any Restricted Subsidiary (or that is distributed deemed to be Incurred by any PersonRestricted Subsidiary that becomes a Restricted Subsidiary) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. 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 Company, which properties and assets, if held by the Company instead as a result of such Subsidiariestransaction undertaken in compliance with this covenant, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisany Refinancing Indebtedness with respect thereto, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Companyhave been Incurred in compliance with Section 4.3. The Successor Company shall be the successor to the Company and shall will succeed to, and be substituted for, and may exercise every right and power of, the Company under this the Indenture, and thereafter the predecessor CompanyCompany shall be relieved of all obligations and covenants under this Agreement, except that, in the case of a leaseconveyance, shall transfer or lease of all or substantially all its assets, the predecessor Company will not be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Notwithstanding Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, 5.1(ii) and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Companyiii), whether through a merger(1) any Restricted Subsidiary may consolidate with, 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger merge into or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company and (2) the Company may merge with an Affiliate incorporated or a Subsidiary Guarantororganized for the purpose of reincorporating or reorganizing the Company in another jurisdiction to realize tax or other benefits. Notwithstanding the foregoing, the Company may enter into, perform and consummate the Transactions.
Appears in 1 contract
Samples: Indenture (Telex Communications Inc)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other person or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, lease all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to any person, nor will the Company (so long as no Capital Stock permit any Subsidiary to enter into any such transaction or series of transactions if such transaction or series of transactions, in the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company aggregate, would result in another jurisdiction. For purposes of this Section 5.01, the a sale, lease, conveyance, assignment, transfer transfer, lease or other disposition of all or substantially all of the properties and assets of the Company and its Subsidiaries on a consolidated basis to any other person or persons, unless:
(a) either (i) the Company or such Subsidiary shall be the surviving corporation or (ii) the person (if other than the Company) formed by such consolidation or into which the Company or such Subsidiary is merged or the person which acquires by conveyance, transfer or lease the properties and assets of the Company or such Subsidiary substantially as an entirety (A) shall be organized and validly existing under the laws of the United States or any state thereof or the District of Columbia and (B) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company or such Subsidiary under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been satisfied. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the properties and assets of one or more Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor successor person formed by such consolidation or into which the Company shall be or the applicable Subsidiary is merged or the successor person to the Company and 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 or the applicable Subsidiary under this Indenture, Indenture with the same effect as if such successor had been named as the Company or the applicable Subsidiary herein; and the predecessor Companythereafter, except in the case of a leaselease and any obligations the Company or the applicable Subsidiary may have under a supplemental indenture pursuant to Section 12.14 hereof, the Company or the applicable Subsidiary shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.6 hereof, the Company, the applicable Subsidiary, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, release of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transactionthe applicable Subsidiary.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, into any other Person or convey, transfer transfer, sell, lease or lease, in one transaction or a series otherwise dispose of transactions, directly or indirectly, all or substantially all of its properties and assets to, to any Person, unless:
(ia) either (A1) the Company shall be the surviving continuing corporation or (B2) the resulting, surviving or transferee Person (in each if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer or lease all or substantially all of clauses the properties and assets of the Company (A) or (B), the “Successor Company”i) shall (1) be a corporation or limited liability company organized and validly existing under the laws of the United States of America, or any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2ii) shall expressly assume, by an indenture supplemental theretohereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;
(iib) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default Event of Default, and no event that, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(ivc) the Company shall have delivered to the Trustee an Officers’ Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture (if any) indenture, comply with this Indenture; provided, however, Article 5 and that clause (iii) shall not be applicable all conditions precedent herein provided for relating to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdictionsuch transaction have been satisfied. For purposes of this Section 5.01the foregoing, the sale, transfer (by lease, conveyance, assignment, transfer sale or other disposition of all or substantially all otherwise) of the properties and assets of one or more Designated Subsidiaries of (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basisCompany, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company; provided that, with respect to the foregoing, any securitization transaction or series of securitization transactions entered into by any Subsidiary pursuant to which such Subsidiary sells, transfers, conveys or grants a security interest in, any assets (including any documentation of such securitization and rights arising therefrom) that are the subject of such securitization transaction or series of securitization transactions shall not be deemed to be the transfer of all or substantially all the assets of the Company. The Successor successor Person formed by such consolidation or into which the Company shall be is merged or the successor Person to the Company and which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, Indenture with the same effect as if such successor had been named as the Company herein; and the predecessor Companythereafter, except in the case of a leaselease and obligations the Company may have under a supplemental indenture, the Company shall be released discharged from the obligation to pay the principal of all obligations and interest on covenants under this Indenture and the Securities. For all purposes Subject to Section 9.06, the Company, the Trustee and the successor Person shall enter into a supplemental indenture to evidence the succession and substitution of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, such successor Person and all Indebtedness such discharge and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person 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 or an Affiliate release of the Company), 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, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Indenture (Labone Inc/)
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of Americaa Permitted Flag Jurisdiction, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and);
(iv) the Company shall have delivered to the Trustee an Officers’ Officer's Certificate and an Opinion of Counsel, each stating that such consolidationconsolidation , merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause and
(iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (Bv) the Company merging with shall have delivered to the Trustee an Affiliate Opinion of Counsel to the Company solely effect that the Holders will not recognize income, gain or loss for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For U.S. Federal income tax 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 Company, which properties and assets, if held by the Company instead as a result of such Subsidiariestransaction and will be subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times as would constitute all or substantially all of have been the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Companycase if such transaction had not occurred. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and but the predecessor Company, except in the case of a leaseconveyance, transfer or lease shall not be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or leaselease (other than any vessel charter, including a bareboat charter, entered into in the ordinary course of business), in one transaction or a series of transactions, all or substantially all of its assets to to, any Person (other than the Company or another Subsidiary Guarantor) unless:
: (i) except in the case of a Subsidiary Guarantor (x) Subsidiary Guarantor that has been disposed of in its entirety to another Person (other than to the Company or an Affiliate any of the Companyits Affiliates), whether through a merger, consolidation or sale of Capital Stock or assets or assets, if in connection therewith the Company provides an Officer's Certificate to the Trustee to the effect that the Company will comply with its obligations under Section 4.06 in respect of such disposition and (y) that, as a result of the disposition of all or a portion of its Capital Stock, ceases to be a SubsidiaryBareboat Charter, the resulting, surviving or transferee Person (if not such SubsidiarySubsidiary Guarantor) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of a Permitted Flag Jurisdiction (provided that arrangements reasonably satisfactory to the United States Trustee have been made for recording any Mortgage required to be recorded to maintain the Lien of Americathis Indenture on the Mortgaged Vessel in the appropriate registry office as soon as practicable after such merger, consolidation or conveyance, but in no event more than 10 Business Days (or in the case of Mortgages governed by the laws of Argentina or Paraguay, 15 Business Days) after the date on which any State thereof Mortgaged Vessel is released from the Mortgage to which it was previously subject in connection with such merger, consolidation or the District of Columbiaconveyance), and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
; (ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
and (iii) the Company delivers to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Appears in 1 contract
When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “"Successor Company”") shall (1) be a corporation or limited liability company Person organized and existing under the laws of the United States of Americaa Permitted Flag Jurisdiction, any State thereof or the District of Columbia (provided that, if and the Successor Company is a limited liability company, then there (if not the Company) shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a);
(iv) or (y) the Consolidated Coverage Ratio for immediately after giving effect to such transaction, the Successor Company and its Restricted Subsidiaries would be equal to or greater shall have Consolidated Net Worth in an amount that is not less than such ratio for the Consolidated Net Worth of the Company and its Restricted Subsidiaries immediately prior to such transaction; and;
(ivv) the Company shall have delivered to the Trustee an Officers’ Officer's Certificate and an Opinion of Counsel, each stating that such consolidationconsolidation , merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause and
(iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (Bvi) the Company merging with shall have delivered to the Trustee an Affiliate Opinion of Counsel to the Company solely effect that the Holders will not recognize income, gain or loss for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For Federal income tax 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 Company, which properties and assets, if held by the Company instead as a result of such Subsidiariestransaction and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would constitute all or substantially all of have been the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Companycase if such transaction had not occurred. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and but the predecessor Company, except in the case of a leaseconveyance, transfer or lease shall not be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge merger with or into, or convey, transfer or leaselease (other than any vessel charter, including a bareboat charter, entered into in the ordinary course of business), in one transaction or a series of transactions, all or substantially all of its assets to to, any Person (other than the Company or another Subsidiary Guarantor) unless:
: (i) except in the case of a Subsidiary Guarantor (x) Subsidiary Guarantor that has been disposed of in its entirety to another Person (other than to the Company or an Affiliate any of the Companyits Affiliates), whether through a merger, consolidation or sale of Capital Stock or assets or assets, if in connection therewith the Company provides an Officer's Certificate to the Trustee to the effect that the Company will comply with its obligations under Section 4.06 in respect of such disposition and (y) that, as a result of the disposition of all or a portion of its Capital Stock, ceases to be a SubsidiaryBareboat Charter, the resulting, surviving or transferee Person (if not such SubsidiarySubsidiary Guarantor) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of a Permitted Flag Jurisdiction (provided that arrangements reasonably satisfactory to the United States Trustee have been made for recording any Mortgage required to be recorded to maintain the Lien of Americathis Indenture on the Mortgaged Vessel in the appropriate registry office as soon as practicable after such merger, consolidation or conveyance, but in no event more than 5 Business Days after the date on which any State thereof Mortgaged Vessel is released from the Mortgage to which it was previously subject in connection with such merger, consolidation or the District of Columbiaconveyance), and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
; (ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
and (iii) the Company delivers to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
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