When Issuers May Merge or Transfer Assets. (a) Holdings may not, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless: (i) Holdings is the surviving person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited liability company or similar entity 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 Holdco”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation; (ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures; (iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) no Default shall have occurred and be continuing; (iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Restricted Subsidiary at the time of such transaction), either (1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or (2) the Fixed Charge Coverage Ratio would be no less than such ratio immediately prior to such transaction; (v) if Holdings is not the Successor Holdco, 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 Notes; and (vi) the Successor Holdco shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than Holdings) will succeed to, and be substituted for, Holdings under this Indenture and the Notes, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries. (b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless: (i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary Guarantor.
Appears in 4 contracts
Samples: Indenture (EP Energy Corp), Indenture (EP Energy Corp), Indenture (EP Energy Corp)
When Issuers May Merge or Transfer Assets. (a) Holdings may not, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless:
(i) Holdings is the surviving person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, partnership or limited liability company or similar entity 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 Holdco”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) no Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Restricted Subsidiary at the time of such transaction), either
(1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio for the Successor Holdco and its Restricted Subsidiaries would be no less than such ratio for Holdings and its Restricted Subsidiaries immediately prior to such transaction;
(v) if Holdings is not the Successor Holdco, 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 Notes; and
(vi) the Successor Holdco shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than Holdings) will succeed to, and be substituted for, Holdings under this Indenture and the Notes, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, partnership or limited liability company or similar entitycompany, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof of the United States or may convert into a limited liability company, corporation, partnership, limited liability company partnership or similar entityentity organized or existing under the laws of 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 such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary Guarantor.
Appears in 3 contracts
Samples: Indenture (Athlon Energy Inc.), Indenture (Athlon Energy Inc.), Indenture (Athlon Energy Inc.)
When Issuers May Merge or Transfer Assets. (a) Holdings may not, directly or indirectly, consolidate, amalgamate Neither Issuer shall (1) consolidate with or merge with or into any other Person or wind up or convert into (whether or not Holdings is the surviving Person), or sell, assignconvey, transfer, lease, convey sell or otherwise dispose of all or substantially all of lease its properties or and assets in one or more related transactions, substantially as an entirety to any Person (other than an Issuer), (2) permit any Person to consolidate with or merge into such Issuer, or (3) permit any Person to convey, transfer, sell or lease that Person’s properties and assets substantially as an entirety to such Issuer, unless:
(i) Holdings is in the case of (1) and (2) above, either (x) such Issuer shall be the surviving person or (y) the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdingsan Issuer) formed by such consolidation or to into which such saleIssuer is merged or the Person which acquires by conveyance, assignment, transfer, lease, conveyance transfer or other disposition will have been made lease the properties and assets of such Issuer substantially as an entirety is a corporation, partnership, limited liability company or similar an entity organized or and existing under the laws of the United States, States of America (including any state thereof, State thereof or the District of Columbia), the United Kingdom, Ireland, the Cayman Islands, Bermuda or any territory thereof (Holdings or such Person, as the case may be, being herein called the “Successor Holdco”); provided that in the case where the surviving Person country which is not a corporation, a co-obligor member of the Notes is a corporationOrganisation for Economic Co-operation and Development or the European Union and 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 such Issuer under the Securities and this Indenture;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction (transaction, no Event of Default, and treating any Indebtedness which becomes no event that, after notice or lapse of time or both, would become an obligation Event of the Successor HoldcoDefault, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) no Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Restricted Subsidiary at the time of such transaction), either
(1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio would be no less than such ratio immediately prior to such transaction;
(v) if Holdings is not the Successor Holdco, 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 Notes; and
(viiii) the Successor Holdco Issuers shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation conveyance, transfer, sale or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indentures (if any) indenture, comply with this Indenture. Section 8.01 and that all conditions precedent herein provided for relating to such transaction have been satisfied.
(b) The Successor Holdco (if other than Holdings) will successor Person formed by such consolidation or into which such Issuer is merged or the successor Person to which such conveyance, transfer, sale or lease is made shall succeed to, and be substituted for, Holdings and may exercise every right and power of, such Issuer under this Indenture with the same effect as if such successor had been named as such Issuer herein; and thereafter, such Issuer shall be discharged from all obligations and covenants under this Indenture and the NotesSecurities. Subject to Section 9.03, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture the Issuers, the Trustee and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert successor Person shall enter into a corporation, partnership, limited liability company or similar entity, so long as supplemental indenture to evidence the amount of Indebtedness of Holdings succession 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case substitution of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (successor Person and such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) discharge and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations release of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary GuarantorIssuer.
Appears in 2 contracts
Samples: Indenture (Global Indemnity Group, Inc.), Indenture (Global Indemnity Group, Inc.)
When Issuers May Merge or Transfer Assets. (a) Holdings Neither Globalstar nor Globalstar Capital may not, directly or indirectly, consolidate, amalgamate consolidate with or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person)into, or sellconvey, assign, transfer, transfer or lease, convey in one transaction or otherwise dispose a series of transactions, all or substantially all of its properties assets to any Person; provided, however, that Globalstar may consolidate with or assets merge with or into, or convey, transfer or lease, in one transaction or more related a series of transactions, all or substantially all its assets to any Person unlessPerson, if:
(i) Holdings is the resulting , surviving person or transferee Person (the "Successor Issuer") shall be a Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited liability company or similar entity organized or and existing under the laws of Bermuda the United StatesStates of America, any state thereof, State thereof or the District of ColumbiaColumbia and the Successor Issuer (if not Globalstar) shall expressly assume, or any territory thereof (Holdings or such Personby an indenture supplemental hereto, as executed and delivered to the case may beTrustee, being herein called in form satisfactory to the “Successor Holdco”); provided that in Trustee, all the case where obligations of Globalstar under the surviving Person is not a corporation, a co-obligor of the Notes is a corporationSecurities and this Indenture;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness Debt which becomes an obligation of the Successor Holdco, Issuer or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) ), no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the Successor Issuer would be able to Incur an additional $1. of Debt pursuant to Section 4.3(a);
(iv) immediately after giving pro forma effect to such transaction, as if the Successor Issuer shall have Consolidated Net Worth in an amount that is not less than the
(v) Globalstar shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such transaction had occurred at and such supplemental indenture (if any) comply with this Indenture. The Successor Issuer shall be the beginning successor to Globalstar and shall succeed to, and be substituted for, and may exercise every right and power of, Globalstar under this Indenture, and Globalstar (other than in the case of a lease) shall be released from the obligation to pay the principal of and interest on the Securities.
(b) Globalstar 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) the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the applicable four-quarter period 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 guaranty agreement in a form acceptable to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guaranty; (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 Successor Holdcoresulting, surviving or any Restricted Subsidiary transferee Person as a result of such transaction as having been Incurred issued by the Successor Holdco, or such Restricted Subsidiary Person at the time of such transaction), either
(1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio would be no less than such ratio immediately prior to such transaction;
(v) if Holdings is not the Successor Holdco, each Subsidiary Guarantor, unless it is the other party to the transactions described above, Default shall have by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Person’s obligations under this Indenture occurred and the Notesbe continuing; and
and (viiii) the Successor Holdco shall have delivered Globalstar delivers to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than Holdings) will succeed to, and be substituted for, Holdings under this Indenture and the Notes, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (guaranty agreement, if any) comply , complies with this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (Globalstar Capital Corp), Indenture (Globalstar Capital Corp)
When Issuers May Merge or Transfer Assets. (a) Holdings may not, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless:
(i) Holdings is the surviving person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, partnership or limited liability company or similar entity 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 Holdco”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) no Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Restricted Subsidiary at the time of such transaction), either
(1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio for the Successor Holdco and its Restricted Subsidiaries would be no less greater than such ratio for Holdings and its Restricted Subsidiaries immediately prior to such transaction;
(v) if Holdings is not the Successor Holdco, 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 Notes; and
(vi) the Successor Holdco shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than Holdings) will succeed to, and be substituted for, Holdings under this Indenture and the Notes, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, partnership or limited liability company or similar entitycompany, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof of the United States or may convert into a limited liability company, corporation, partnership, limited liability company partnership or similar entityentity organized or existing under the laws of 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 such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (MBOW Four Star, L.L.C.), Indenture (MBOW Four Star, L.L.C.)
When Issuers May Merge or Transfer Assets. (a) Holdings may not, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless:
(i) Holdings is the surviving person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited liability company or similar entity organized or existing under the laws Neither 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 Holdco”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) no Default Issuers shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Restricted Subsidiary at the time of such transaction), either
(1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio would be no less than such ratio immediately prior to such transaction;
(v) if Holdings is not the Successor Holdco, 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 Notes; and
(vi) the Successor Holdco shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than Holdings) will succeed to, and be substituted for, Holdings under this Indenture and the Notes, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor Issuer is the surviving Personcorporation), 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 Subsidiary Guarantor Issuer is the surviving Person corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than such Subsidiary GuarantorIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor the Issuer or such Person, as the case may be, being herein called the “Successor Subsidiary GuarantorCompany”) and and, if such entity is not a corporation, a co-obligor of the Securities is a corporation organized or existing under such laws;
(ii) the Successor Subsidiary Guarantor Company (if other than such Subsidiary GuarantorIssuer) expressly assumes all the obligations of such Issuer under this Indenture, the Securities and the Collateral Documents pursuant to supplemental indentures or other documents or instruments;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary Guarantor 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 be greater than such ratio for Holdings and its Restricted Subsidiaries immediately prior to such transaction;
(v) if the Successor Company is other than such Issuer, each Note 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 and the Notes or the Subsidiary Guarantee, as applicable, pursuant to a supplemental indenture, or (B) such sale or disposition or consolidation, amalgamation or merger is not in violation of Section 4.06Securities; and
(iivi) the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) Issuers shall have delivered or caused to be 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 supplemental indenture indentures (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the The Successor Subsidiary Guarantor Company (if other than such Subsidiary GuarantorIssuer) will shall succeed to, and be substituted for, such Subsidiary Guarantor an Issuer under this Indenture Indenture, the Securities and the Notes or the Subsidiary Guarantee, as applicableCollateral Documents, and in such Subsidiary Guarantor will event, the Issuer shall automatically be released and discharged from its obligations under this Indenture Indenture, the Securities and its Subsidiary Guaranteethe Collateral Documents. Notwithstanding the foregoingforegoing clauses (iii) and (iv) of this Section 5.01(a), (1a) a Subsidiary Guarantor an Issuer may mergeconsolidate with, amalgamate merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to Holdings, the Issuers or to any Restricted Subsidiary, and (b) an Issuer may merge or consolidate with an Affiliate incorporated or organized solely for the purpose of reincorporating such Subsidiary Guarantor or reorganizing the Issuers in another state of the United States, the District of Columbia or any territory thereof or of the United States and (c) the Transactions may convert into a corporation, partnership, limited liability company or similar entity, occur so long as the amount of Indebtedness of such Subsidiary Guarantor Issuer and its Restricted Subsidiaries is not increased thereby and (2any transaction described in this sentence, a “Specified Merger/Transfer Transaction”).
(b) Subject to the provisions of Section 11.02(b) (which govern the release of a Subsidiary Guarantor may merge, amalgamate Note Guarantee upon the sale or consolidate with disposition of Holdings or another its Restricted Subsidiary (other than an Issuer) that is a Note Guarantor. In addition, notwithstanding the foregoingeach Note Guarantor shall not, a Subsidiary and Holdings shall not permit any Note Guarantor may consolidateto, amalgamate consolidate or merge with or into or wind up into, liquidate, dissolveinto (whether or not such Note 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 (collectively, a “Transfer”other than the Transactions) unless:
(i) such sale or disposition or consolidation or merger is not in violation of Section 4.06;
(ii) immediately after giving effect to Holdings 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
(iii) the Successor 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, stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. The Successor Guarantor shall succeed to, and be substituted for, such 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 or consolidate with an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing 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, (2) a Note Guarantor may merge or consolidate with another Note Guarantor or the Issuers, and (3) a Note 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 Note Guarantor.
Appears in 2 contracts
Samples: Indenture (Gates Global Inc.), Indenture (Gates Engineering & Services FZCO)
When Issuers May Merge or Transfer Assets. (a) Holdings (i) Prior to the Post-Closing Restructuring Transaction, the Issuers may not, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not Holdings an Issuer is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of their properties or assets in one or more related transactions, in each case, taken as a whole, to any Person (other than in any case in connection with the Transactions or the Post-Closing Restructuring Transaction) and (ii) following the Post-Closing Restructuring Transaction, CERP LLC may not, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not CERP LLC 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 in any case in connection with the Transactions or the Post-Closing Restructuring Transaction) unless:
(i) Holdings such Issuer is the surviving person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdingssuch Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, partnership or limited liability company or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (Holdings such Issuer or such Person, as the case may be, being herein called the “Successor HoldcoIssuer”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes at least one other Issuer is a corporation;
(ii) the Successor Holdco Issuer (if other than Holdingsan Issuer) expressly assumes all the obligations of Holdings such prior Issuer under this Indenture and the Notes pursuant to supplemental indenturesindentures 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 Holdco, Issuer or any of its Restricted Subsidiary Subsidiaries as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) no Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, Issuer or any of its Restricted Subsidiary Subsidiaries as a result of such transaction as having been Incurred by the Successor Holdco, Issuer or such Restricted Subsidiary at the time of such transaction), either
(1A) the Successor Holdco Issuer would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(2B) the Fixed Charge Coverage Ratio would be no for the Successor Issuer and its Restricted Subsidiaries is not less than such ratio for such prior Issuer and its Restricted Subsidiaries immediately prior to such transaction;
(v) if Holdings the prior Issuer is not the Successor HoldcoIssuer, each Issuer and Subsidiary Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Subsidiary Guarantee obligations in respect of the Notes shall apply to such Person’s obligations under this Indenture and the Notes; and
(vi) the Successor Holdco Issuers shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco Issuer (if other than Holdingsthe prior Issuer) will succeed to, and be substituted for, Holdings such Issuer under this Indenture and the Notes, and in such event Holdings such Issuer will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.015.01(a), (a) Holdings any Issuer or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings another Issuer or to a another Restricted Subsidiary, and (b) Holdings an Issuer may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings such Issuer in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, limited liability company or similar entitycompany, so long as the amount of Indebtedness of Holdings such Issuer and the its Restricted Subsidiaries is not increased therebythereby and (c) prior to the Post-Closing Restructuring Transaction, such clauses (iii) and (iv) shall only apply to a merger, consolidation, amalgamation or transfer involving all of substantially all of the assets of the Issuers and the Restricted Subsidiaries, taken as a whole. This Article V will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among Holdings the Issuers and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 (which govern the release of assets and Section 12.02(b)(iproperty securing the Notes upon the sale or disposition of a Restricted Subsidiary that is an Issuer or Subsidiary Guarantor), no Issuer or Subsidiary Guarantor shall, and Holdings the Issuers shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not an Issuer or such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person (other than in any case in connection with the Transactions or the Post-Closing Restructuring Transaction) unless:
(i) either (A) such Issuer or Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Issuer or Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Issuer or Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary GuarantorEntity”) and the Successor Subsidiary Guarantor Entity (if other than such Issuer or Subsidiary Guarantor) expressly assumes all the obligations of such Issuer or Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, Security Documents pursuant to a supplemental indenturedocuments or instruments in form reasonably satisfactory to the Trustee, or (Bb) such sale or disposition or consolidation, amalgamation or merger is not in violation of Section 4.06; and
(ii) the Successor Subsidiary Guarantor Entity (if other than such Issuer or Subsidiary Guarantor) shall have delivered or caused to be 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 supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor Entity (if other than such Issuer or Subsidiary Guarantor) will succeed to, and be substituted for, such Issuer or Subsidiary Guarantor under this Indenture and such Issuer’s or Subsidiary Guarantor’s obligations in respect of the Notes or the Subsidiary Guarantee, as applicableNotes, and such Issuer or Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its such Issuer’s or Subsidiary GuaranteeGuarantor’s obligations in respect of the Notes. Notwithstanding the foregoing, (1) an Issuer (other than CERP LLC) or a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, of the United States so long as the amount of Indebtedness of such Issuer or Subsidiary Guarantor is not increased thereby and (2) an Issuer (other than CERP LLC) or a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary GuarantorGuarantor or an Issuer. In addition, notwithstanding the foregoing, a any Issuer (other than CERP LLC) or Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings an Issuer or any Subsidiary Guarantor.
Appears in 2 contracts
Samples: Indenture (CAESARS ENTERTAINMENT Corp), Indenture (CAESARS ENTERTAINMENT Corp)
When Issuers May Merge or Transfer Assets. Neither the Issuer nor the Co-Issuer (aif applicable) Holdings may notshall merge, directly consolidate or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person), any other Person or sell, transfer, assign, transfer, lease, convey or otherwise dispose of all or substantially all its Property in any one transaction or series of its properties or assets in one or more related transactions, to any Person transactions unless:
(ia) Holdings is the Issuer or the Co-Issuer, as applicable, shall be the surviving person Person or the surviving Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdingsthe Issuer or the Co-Issuer) formed by that merger, consolidation or amalgamation or to which such that sale, transfer, assignment, lease, conveyance or disposition is made shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (each such Person, the “Surviving Person”);
(b) the Surviving Person (if other than the Issuer or the Co-Issuer, as applicable) expressly assumes, (i) by supplemental indenture executed and delivered to the Trustee by that Surviving Person, in the case of a Surviving Person formed by the merger, consolidation or amalgamation with the Issuer or the Co-Issuer, as applicable, or to which the sale, transfer, assignment, lease, conveyance or disposition is with respect to all or substantially all of the Property of the Issuer or the Co-Issuer, the due and punctual payment of the principal of, and premium, if any, and interest on, all the Notes, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture to be performed by the Issuer or the Co-Issuer and (ii) by written agreement, the obligations of the Issuer or the Co-Issuer, as applicable, under the Registration Rights Agreement;
(c) in the case of a sale, transfer, assignment, lease, conveyance or other disposition will of all or substantially all the Property of the Issuer or the Co-Issuer, that Property shall have been made is a corporation, partnership, limited liability company transferred as an entirety or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (Holdings or such virtually as an entirety to one Person, as the case may be, being herein called the “Successor Holdco”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iiid) immediately before and after giving effect to such that transaction (and treating any Indebtedness which becomes an obligation or series of the Successor Holdcotransactions on a pro forma basis, no Default or any Restricted Subsidiary as a result Event of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) no Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Restricted Subsidiary at the time of such transaction), either
(1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio would be no less than such ratio immediately prior to such transaction;
(v) if Holdings is not the Successor Holdco, 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 Notes; and
(vie) the Successor Holdco Issuer and the Co-Issuer shall have delivered deliver, or cause to be delivered, to the Trustee Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidationthe transaction and the supplemental indenture, merger, amalgamation or transfer and such supplemental indentures (if any) , in respect thereto comply with this IndentureSection 5.01 and that all conditions precedent herein provided for relating to the transaction have been satisfied. The Successor Holdco (if other than Holdings) will Surviving Person shall succeed to, and be substituted for, Holdings under this Indenture and the Notes, may exercise every right and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state power of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary GuaranteeCo-Issuer, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (if any) comply with under this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary Guarantor.
Appears in 1 contract
When Issuers May Merge or Transfer Assets. (a) Holdings may not, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless:
(i) Holdings is the surviving person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, partnership or limited liability company or similar entity 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 Holdco”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;; and
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) no Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Restricted Subsidiary at the time of such transaction), either
(1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio would be no less than such ratio immediately prior to such transaction;
(v) if Holdings is not the Successor Holdco, 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 Notes; and
(vi) the Successor Holdco shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than Holdings) will succeed to, and be substituted for, Holdings under this Indenture and the Notes, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01foregoing, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, partnership or limited liability company or similar entitycompany, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof of the United States or may convert into a limited liability company, corporation, partnership, limited liability company partnership or similar entityentity organized or existing under the laws of 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 such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary Guarantor.
Appears in 1 contract
When Issuers May Merge or Transfer Assets. (a) Holdings may not, directly or indirectly, consolidate, amalgamate Neither Note Issuer shall consolidate with or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person)into, or sellconvey, assign, transfer, transfer or lease, convey in one transaction or otherwise dispose a series of transactions, all or substantially all of its properties or assets in one or more related transactions, to any Person unless:
(i) Holdings is the resulting, surviving person or transferee Person (the "Successor Company") shall be a Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited liability company or similar entity organized or and existing under the laws of the United StatesStates of America, any state thereof, State thereof or the District of ColumbiaColumbia or the laws of Bermuda and the Successor Company (if not Iridium) shall expressly assume, or any territory thereof (Holdings or such Personby an indenture supplemental hereto, as executed and delivered to the case may beTrustee, being herein called in form satisfactory to the “Successor Holdco”); provided that in Trustee, all the case where the surviving Person is not a corporation, a co-obligor obligations of Iridium under the Notes is a corporationand this Indenture;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction on a pro forma basis (and treating any Indebtedness which becomes an obligation of the Successor Holdco, Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by the such Successor Holdco, Company or such Issuer or such Restricted Subsidiary at the time of such transaction) ), no Default shall have occurred and be continuing;
(iviii) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Restricted Subsidiary at the time of such transaction), either
(1) the Successor Holdco Company would be permitted able to Incur at least an additional $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in under Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio would be no less than such ratio immediately prior to such transaction;
(v) if Holdings is not the Successor Holdco, 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 Notes; and
(vi) the Successor Holdco Iridium shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than Holdings) will succeed to, and be substituted for, Holdings under this Indenture and the Notes, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except The requirements of clause (iii) above shall not apply where Iridium merges with or into, or conveys, transfers or leases, in one transaction or a series of transactions, all or substantially all of its assets to, any Person with no outstanding Indebtedness (other than Indebtedness which is also Indebtedness of Iridium).
(b) Iridium may within six months of the Issue Date convey or transfer in one transaction or a series of related transactions, all or substantially all its assets to a Wholly-Owned Restricted Subsidiary of Iridium upon compliance with clauses (i) and (v) of the preceding paragraph (and without complying with clauses (ii) through (iv), inclusive, of the preceding paragraph) (the "Asset Drop-Down Transaction").
(c) Iridium shall not permit any Guarantor Subsidiary 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) the resulting, surviving or transferee Person (if not such Subsidiary) is 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, the District of Columbia or the laws of Bermuda, and such Person expressly assumes, by a guaranty agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its related Subsidiary Guaranty (except to the extent it would not otherwise have been required to provide a Subsidiary Guaranty); (ii) immediately after giving effect to such transaction on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as otherwise provided in a result of such transaction as having been issued by such Person at the time of such transaction), no Default has occurred and is continuing under this Indenture; and (iii) Iridium has delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such guaranty agreement, if any, complies with this Indenture.
(d) The Successor Company shall be the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will successor to Iridium and shall succeed to, and be substituted for, such and may exercise every right and power of, Iridium, Capital or any Guarantor Subsidiary, respectively, under this Indenture, the Notes and the related Subsidiary Guaranty, as applicable, and the predecessor Iridium, Capital or Guarantor Subsidiary, respectively (other than in the case of a lease), shall be released from all obligations and covenants under this Indenture and the Notes or the related Subsidiary GuaranteeGuaranty, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary Guarantor.61 54
Appears in 1 contract
When Issuers May Merge or Transfer Assets. (a) EPE Holdings may not, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not EPE Holdings is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless:
(i) EPE Holdings is the surviving person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than EPE Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, partnership or limited liability company or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (EPE Holdings or such Person, as the case may be, being herein called the “Successor Holdco”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(ii) the Successor Holdco (if other than EPE Holdings) expressly assumes all the obligations of EPE Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) no Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Restricted Subsidiary at the time of such transaction), either
(1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a4.03(a)(ii)(A); or
(2) the Fixed Charge Coverage Ratio for the Successor Holdco and its Restricted Subsidiaries would be no less greater than such ratio for EPE Holdings and its Restricted Subsidiaries immediately prior to such transaction;
(v) if EPE Holdings is not the Successor Holdco, 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 Notes; and
(vi) the Successor Holdco shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than EPE Holdings) will succeed to, and be substituted for, EPE Holdings under this Indenture and the Notes, and in such event EPE Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) EPE Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to EPE Holdings or to a Restricted Subsidiary, and (b) EPE Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating EPE Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, partnership or limited liability company or similar entitycompany, so long as the amount of Indebtedness of EPE Holdings 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 EPE Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and EPE Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof of the United States or may convert into a limited liability company, corporation, partnership, limited liability company partnership or similar entityentity organized or existing under the laws of 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 such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings an Issuer or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings an Issuer or any Subsidiary Guarantor.
Appears in 1 contract
Samples: Indenture (EP Energy Corp)
When Issuers May Merge or Transfer Assets. (a) Holdings Neither Globalstar nor Globalstar Capital may not, directly or indirectly, consolidate, amalgamate consolidate with or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person)into, or sellconvey, assign, transfer, transfer or lease, convey in one transaction or otherwise dispose a series of transactions, all or substantially all of its properties assets to any Person; provided, however, that Globalstar may consolidate with or assets merge with or into, or convey, transfer or lease, in one transaction or more related a series of transactions, all or substantially all its assets to any Person unlessPerson, if:
(i) Holdings is the resulting, surviving person or transferee Person (the "Successor Issuer") shall be a Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited liability company or similar entity organized or and existing under the laws of the United StatesStates of America, any state thereof, State thereof or the District of ColumbiaColumbia and the Successor Issuer (if not Globalstar) shall expressly assume, or any territory thereof (Holdings or such Personby an indenture supplemental hereto, as executed and delivered to the case may beTrustee, being herein called in form satisfactory to the “Successor Holdco”); provided that in Trustee, all the case where obligations of Globalstar under the surviving Person is not a corporation, a co-obligor of the Notes is a corporationSecurities and this Indenture;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness Debt which becomes an obligation of the Successor Holdco, Issuer or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) ), no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the Successor Issuer would be able to Incur an additional $1.00 of Debt pursuant to Section 4.03(a);
(iv) immediately after giving pro forma effect to such transaction, as if the Successor Issuer shall have Consolidated Net Worth in an amount that is not less than the Consolidated Net Worth of Globalstar immediately prior to such transaction; and
(v) Globalstar shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, 55 49 each stating that such transaction had occurred at and such supplemental indenture (if any) comply with this Indenture. The Successor Issuer shall be the beginning successor to Globalstar and shall succeed to, and be substituted for, and may exercise every right and power of, Globalstar under this Indenture, and Globalstar (other than in the case of a lease) shall be released from the obligation to pay the principal of and interest and Liquidated Damages (if any) on the Securities.
(b) Globalstar 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) the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the applicable four-quarter period 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 guaranty agreement in a form acceptable to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guaranty; (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 Successor Holdcoresulting, surviving or any Restricted Subsidiary transferee Person as a result of such transaction as having been Incurred issued by the Successor Holdco, or such Restricted Subsidiary Person at the time of such transaction), either
(1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio would be no less than such ratio immediately prior to such transaction;
(v) if Holdings is not the Successor Holdco, each Subsidiary Guarantor, unless it is the other party to the transactions described above, Default shall have by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Person’s obligations under this Indenture occurred and the Notesbe continuing; and
and (viiii) the Successor Holdco shall have delivered Globalstar delivers to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than Holdings) will succeed to, and be substituted for, Holdings under this Indenture and the Notes, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (guaranty agreement, if any) comply , complies with this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary Guarantor.
Appears in 1 contract
Samples: Indenture (Globalstar Capital Corp)
When Issuers May Merge or Transfer Assets. (a) Holdings Neither Globalstar nor Globalstar Capital may not, directly or indirectly, consolidate, amalgamate consolidate with or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person)into, or sellconvey, assign, transfer, transfer or lease, convey in one transaction or otherwise dispose a series of transactions, all or substantially all of its properties assets to any Person; provided, however, that Globalstar may consolidate with or assets merge with or into, or convey, transfer or lease, in one transaction or more related a series of transactions, all or substantially all its assets to any Person unlessPerson, if:
(i) Holdings is the resulting, surviving person or transferee Person (the "Successor Issuer") shall be a Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited liability company or similar entity organized or and existing under the laws of Bermuda the United StatesStates of America, any state thereof, State thereof or the District of ColumbiaColumbia and the Successor Issuer (if not Globalstar) shall expressly assume, or any territory thereof (Holdings or such Personby an indenture supplemental hereto, as executed and delivered to the case may beTrustee, being herein called in form satisfactory to the “Successor Holdco”); provided that in Trustee, all the case where obligations of Globalstar under the surviving Person is not a corporation, a co-obligor of the Notes is a corporationSecurities and this Indenture;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness Debt which becomes an obligation of the Successor Holdco, Issuer or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) ), no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the Successor Issuer would be able to Incur an additional $1 of Debt pursuant to Section 4.3(a);
(iv) immediately after giving pro forma effect to such transaction, as if the Successor Issuer shall have Consolidated Net Worth in an amount that is not less than the
(v) Globalstar shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such transaction had occurred at and such supplemental indenture (if any) comply with this Indenture. The Successor Issuer shall be the beginning successor to Globalstar and shall succeed to, and be substituted for, and may exercise every right and power of, Globalstar under this Indenture, and Globalstar (other than in the case of a lease) shall be released from the obligation to pay the principal of and interest on the Securities.
(b) Globalstar 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) the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the applicable four-quarter period 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 guaranty agreement in a form acceptable to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guaranty; (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 Successor Holdcoresulting, surviving or any Restricted Subsidiary transferee Person as a result of such transaction as having been Incurred issued by the Successor Holdco, or such Restricted Subsidiary Person at the time of such transaction), either
(1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio would be no less than such ratio immediately prior to such transaction;
(v) if Holdings is not the Successor Holdco, each Subsidiary Guarantor, unless it is the other party to the transactions described above, Default shall have by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Person’s obligations under this Indenture occurred and the Notesbe continuing; and
and (viiii) the Successor Holdco shall have delivered Globalstar delivers to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than Holdings) will succeed to, and be substituted for, Holdings under this Indenture and the Notes, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (guaranty agreement, if any) comply , complies with this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary Guarantor.
Appears in 1 contract
Samples: Indenture (Globalstar Capital Corp)
When Issuers May Merge or Transfer Assets. (a) Holdings may not, directly or indirectly, consolidate, amalgamate Neither the Company nor SFG Capital shall consolidate with or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person)into, or sellconvey, assign, transfer, lease, convey transfer or otherwise dispose of lease all or substantially all of its properties assets to, any Person; provided, however, that the Company may consolidate with or merge with or into, or convey transfer or lease all or substantially all its assets in one or more related transactions, to any Person unlessif the following conditions are met:
(i) Holdings is the resulting, surviving person or transferee Person (the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings"Successor Company") or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is shall be a corporation, partnership, limited liability company or similar entity limited partnership organized or and existing under the laws of the United StatesStates of America, any state thereof, State thereof or the District of Columbia, or any territory thereof and the Successor Company (Holdings or such Personif not the Company) shall expressly assume, as by an indenture supplemental hereto, executed and delivered to the case may beTrustee, being herein called in form satisfactory to the “Successor Holdco”); provided that in Trustee, all the case where the surviving Person is not a corporation, a co-obligor obligations of the Notes is a corporationCompany under the Securities and this Indenture;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Holdco, Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) no Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, Company or such Restricted Subsidiary at the time of such transaction), eitherno Default shall have occurred and be continuing;
(1iii) immediately after giving effect to such transaction, the Successor Holdco Company would be permitted able to Incur at least an additional $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or;
(2iv) immediately after giving effect to such transaction, the Fixed Charge Coverage Ratio would be no Successor Company shall have Consolidated Net Worth in an amount which is not less than such ratio the Consolidated Net Worth of the Company immediately prior to such transaction;; and
(v) if Holdings is not the Successor Holdco, 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 Notes; and
(vi) the Successor Holdco Company shall have delivered to the Trustee an Officers’ ' Certificate of the Company and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than Holdings) will succeed to, and be substituted for, Holdings under this Indenture and the Notes, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the The Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will Company shall succeed to, and be substituted for, such Subsidiary Guarantor and may exercise every right and power of, the Company under this Indenture and Indenture, but the Notes predecessor Company in the case of a conveyance, transfer or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose 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. Notwithstanding the foregoing clauses (ii), (iii) and (iv), (a) any Restricted Subsidiary, other than SFG Capital, may consolidate with, merge into or transfer all or part of its properties and assets to the Company and (b) the Company may merge with an Affiliate of the Company incorporated or assets organized for the purpose of (collectively, x) incorporating or organizing the Company in another jurisdiction to realize tax or other benefits or (y) changing organizational form from a “Transfer”) limited partnership to Holdings a corporation or any Subsidiary Guarantorlimited liability company.
Appears in 1 contract
Samples: Indenture (SFG Capital Corp)
When Issuers May Merge or Transfer Assets. (a) Holdings may not, directly or indirectly, consolidate, amalgamate Neither ----------------------------------------- of the Issuers shall consolidate with or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person)into, or sellconvey, assign, transfer, lease, convey transfer or otherwise dispose of lease all or substantially all of its properties or assets in one or more related transactionsto, to any Person Person, unless:
(i) Holdings is the resulting, surviving person or transferee Person (the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings"Successor Company") or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is shall be a corporation, partnership, limited liability company or similar entity corporation organized or and existing under the laws of the United States, any state thereof, thereof or the District of Columbia, or any territory thereof (Holdings or such Person, as the case may be, being herein called the “Successor Holdco”); provided that in the case where of DCC, or The Netherlands, in the surviving Person is case of Lyon, and the Successor Company (if not an Issuer) shall expressly assume, by a corporationsupplemental indenture, a co-obligor executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of such Issuer under the Notes is a corporationSecurities and this Indenture;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Holdco, Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) no Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, Company or such Restricted Subsidiary at the time of such transaction), eitherno Default shall have occurred and be continuing;
(1iii) immediately after giving effect to such transaction, the Successor Holdco Company would be permitted able to Incur at least an additional $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio would be no less than such ratio immediately prior to such transaction;
(v) if Holdings is not the Successor Holdco, 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 Notes; and
(viiv) the Successor Holdco Issuers shall have delivered to the Trustee an Officers’ Certificate ' Certificates and an Opinion Opinions of Counsel, each stating that such consolidation, merger, amalgamation merger or transfer and such supplemental indentures (indenture, if any) , comply with this Indenture; and
(v) the Issuers shall have delivered to the Trustee opinions of tax counsel reasonably acceptable to the Trustee stating that (A) any payment of principal, redemption price or purchase price of, premium, if any, interest on, and, if any, Additional Amounts in respect of, the Securities by the Successor Company to a holder of Securities after the consolidation, merger, conveyance, transfer or lease of assets shall be exempt from the Taxes described in Section 4.16 and (B) no other taxes on income (including taxable capital gains) shall be payable under the laws of The Netherlands and any other jurisdiction where the Successor Company is or becomes located by a holder of Securities who is not deemed to be a resident of The Netherlands or other jurisdiction where the Successor Company is or becomes located and does not carry on any business activities through a branch, agency or permanent establishment in The Netherlands or such other jurisdiction where the Successor Company is or becomes located in respect of the acquisition, ownership or disposition of Securities, including receipt of principal, premium, if any, interest on, and, Additional Amounts, if any, paid pursuant to such Securities. The Successor Holdco (if other than Holdings) will Company shall succeed to, and be substituted for, Holdings and may exercise every right and power of, such Issuer under this Indenture and Indenture, but the Notespredecessor Issuer in the case of a conveyance, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings transfer or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose lease of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released from the obligation to pay the principal of and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding interest on the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary GuarantorSecurities.
Appears in 1 contract
Samples: Indenture (Derby Cycle Corp)
When Issuers May Merge or Transfer Assets. (a) Holdings may not, directly or indirectly, consolidate, amalgamate Neither Note Issuer shall consolidate with or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person)into, or sellconvey, assign, transfer, transfer or lease, convey in one transaction or otherwise dispose a series of transactions, all or substantially all of its properties or assets in one or more related transactions, to any Person unless:
(i) Holdings is the resulting, surviving person or transferee Person (the "Successor Company") shall be a Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited liability company or similar entity organized or and existing under the laws of the United StatesStates of America, any state thereof, State thereof or the District of ColumbiaColumbia or the laws of Bermuda and the Successor Company (if not Iridium) shall expressly assume, or any territory thereof (Holdings or such Personby an indenture supplemental hereto, as executed and delivered to the case may beTrustee, being herein called in form satisfactory to the “Successor Holdco”); provided that in Trustee, all the case where obligations of Iridium under the surviving Person is not a corporation, a co-obligor of the Series A Notes is a corporationand this Indenture;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction on a pro forma basis (and treating any Indebtedness which becomes an obligation of the Successor Holdco, Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by the such Successor Holdco, Company or such Issuer or such Restricted Subsidiary at the time of such transaction) ), no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the Successor Company would be able to Incur an additional $1.00 of Indebtedness under Section 4.03(a); 62 53
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Restricted Subsidiary at the time of such transaction), either
(1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth Company shall have Consolidated Net Worth in Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio would be no an amount which is not less than such ratio the Consolidated Net Worth of Iridium immediately prior to such transaction;; and
(v) if Holdings is not the Successor Holdco, 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 Notes; and
(vi) the Successor Holdco Iridium shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than Holdings) will succeed to, and be substituted for, Holdings under this Indenture and the Notes, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except The requirements of clause (iii) above shall not apply where Iridium merges with or into, or conveys, transfers or leases, in one transaction or a series of transactions, all or substantially all of its assets to, any Person with no outstanding Indebtedness (other than Indebtedness which is also Indebtedness of Iridium).
(b) Iridium may within six months of the Issue Date convey or transfer in one transaction or a series of related transactions, all or substantially all its assets to a Wholly-Owned Restricted Subsidiary of Iridium upon compliance with clauses (i) and (v) of the preceding paragraph (and without complying with clauses (ii) through (iv), inclusive, of the preceding paragraph) (the "Asset Drop-Down Transaction").
(c) Iridium shall not permit any Guarantor Subsidiary 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) the resulting, surviving or transferee Person (if not such Subsidiary) is 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, the District of Columbia or the laws of Bermuda, and such Person expressly assumes, by a guaranty agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its related Subsidiary Guaranty (except to the extent it would not otherwise have been required to provide a Subsidiary Guaranty); (ii) immediately after giving effect to such transaction on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as otherwise provided in a result of such transaction as having been issued by such Person at the time of such transaction), no Default has occurred and is continuing under this Indenture; and (iii) Iridium has delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such guaranty agreement, if any, complies with this Indenture.
(d) The Successor Company shall be the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will successor to Iridium and shall succeed to, and be substituted for, such and may exercise every right and power of, Iridium, Capital or any Guarantor Subsidiary, respectively, under this Indenture, the Series A Notes and the related Subsidiary Guaranty, as applicable, and the predecessor Iridium, Capital or Guarantor Subsidiary, respectively (other than in the case of a lease), shall be released from all obligations and covenants under this Indenture and the Series A Notes or the related Subsidiary GuaranteeGuaranty, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary Guarantor.
Appears in 1 contract
When Issuers May Merge or Transfer Assets. (a) Holdings may not, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless:
(i) Holdings is the surviving person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited liability company or similar entity 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 Holdco”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) no Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Restricted Subsidiary at the time of such transaction), either
(1A) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(2B) the Fixed Charge Coverage Ratio for the Successor Holdco and its Restricted Subsidiaries would be no less than such ratio for Holdings and its Restricted Subsidiaries immediately prior to such transaction;
(v) if Holdings is not the Successor Holdco, 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 Notes; and
(vi) the Successor Holdco shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than Holdings) will succeed to, and be substituted for, Holdings under this Indenture and the Notes, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary Guarantor.
Appears in 1 contract
When Issuers May Merge or Transfer Assets. (a) Holdings may not, directly or indirectly, consolidate, amalgamate Neither Note Issuer shall consolidate with or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person)into, or sellconvey, assign, transfer, transfer or lease, convey in one transaction or otherwise dispose a series of transactions, all or substantially all of its properties or assets in one or more related transactions, to any Person unless:
(i) Holdings is the resulting, surviving person or transferee Person (the "Successor Company") shall be a Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited liability company or similar entity organized or and existing under the laws of the United StatesStates of America, any state thereof, State thereof or the District of ColumbiaColumbia or the laws of Bermuda and the Successor Company (if not Iridium) shall expressly assume, or any territory thereof (Holdings or such Personby an indenture supplemental hereto, as 64 56 executed and delivered to the case may beTrustee, being herein called in form satisfactory to the “Successor Holdco”); provided that in Trustee, all the case where obligations of Iridium under the surviving Person is not a corporation, a co-obligor of the Series B Notes is a corporationand this Indenture;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction on a pro forma basis (and treating any Indebtedness which becomes an obligation of the Successor Holdco, Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by the such Successor Holdco, Company or such Issuer or such Restricted Subsidiary at the time of such transaction) ), no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the Successor Company would be able to Incur an additional $1.00 of Indebtedness under Section 4.03(a);
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Restricted Subsidiary at the time of such transaction), either
(1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth Company shall have Consolidated Net Worth in Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio would be no an amount which is not less than such ratio the Consolidated Net Worth of Iridium immediately prior to such transaction;; and
(v) if Holdings is not the Successor Holdco, 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 Notes; and
(vi) the Successor Holdco Iridium shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than Holdings) will succeed to, and be substituted for, Holdings under this Indenture and the Notes, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except The requirements of clause (iii) above shall not apply where Iridium merges with or into, or conveys, transfers or leases, in one transaction or a series of transactions, all or substantially all of its assets to, any Person with no outstanding Indebtedness (other than Indebtedness which is also Indebtedness of Iridium).
(b) Iridium may within six months of the Issue Date convey or transfer in one transaction or a series of related transactions, all or substantially all its assets to a Wholly-Owned Restricted Subsidiary of Iridium upon compliance with clauses (i) and (v) of the preceding paragraph (and without complying with clauses (ii) through (iv), inclusive, of the preceding paragraph) (the "Asset Drop-Down Transaction").
(c) Iridium shall not permit any Guarantor Subsidiary 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) the resulting, surviving or transferee Person (if not such Subsidiary) is 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, the District of Columbia or the laws of Bermuda, and such Person expressly assumes, by a guaranty agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its related Subsidiary Guaranty (except to the extent it would not otherwise have been required to provide a Subsidiary Guaranty); (ii) immediately after giving effect to such transaction on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as otherwise provided in a result of such 65 57 transaction as having been issued by such Person at the time of such transaction), no Default has occurred and is continuing under this Indenture; and (iii) Iridium has delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such guaranty agreement, if any, complies with this Indenture.
(d) The Successor Company shall be the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will successor to Iridium and shall succeed to, and be substituted for, such and may exercise every right and power of, Iridium, Capital or any Guarantor Subsidiary, respectively, under this Indenture, the Series B Notes and the related Subsidiary Guaranty, as applicable, and the predecessor Iridium, Capital or Guarantor Subsidiary, respectively (other than in the case of a lease), shall be released from all obligations and covenants under this Indenture and the Series B Notes or the related Subsidiary GuaranteeGuaranty, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary Guarantor.
Appears in 1 contract
When Issuers May Merge or Transfer Assets. (a) Holdings Neither Globalstar nor Globalstar Capital may not, directly or indirectly, consolidate, amalgamate consolidate with or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person)into, or sellconvey, assign, transfer, transfer or lease, convey in one transaction or otherwise dispose a series of transactions, all or substantially all of its properties assets to any Person; provided, however, that Globalstar may consolidate with or assets merge with or into, or convey, transfer or lease, in one transaction or more related a series of transactions, all or substantially all its assets to any Person unlessPerson, if:
(i) Holdings is the resulting, surviving person or transferee Person (the "Successor Issuer") shall be a Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited liability company or similar entity organized or and existing under the laws of the United StatesStates of 58 52 America, any state thereof, State thereof or the District of ColumbiaColumbia and the Successor Issuer (if not Globalstar) shall expressly assume, or any territory thereof (Holdings or such Personby an indenture supplemental hereto, as executed and delivered to the case may beTrustee, being herein called in form satisfactory to the “Successor Holdco”); provided that in Trustee, all the case where obligations of Globalstar under the surviving Person is not a corporation, a co-obligor of the Notes is a corporationSecurities and this Indenture;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness Debt which becomes an obligation of the Successor Holdco, Issuer or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) ), no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the Successor Issuer would be able to Incur an additional $1.00 of Debt pursuant to Section 4.03(a);
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Restricted Subsidiary at the time of such transaction), either
(1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth Issuer shall have Consolidated Net Worth in Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio would be no an amount that is not less than such ratio the Consolidated Net Worth of Globalstar immediately prior to such transaction;; and
(v) if Holdings is not the Successor Holdco, 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 Notes; and
(vi) the Successor Holdco Globalstar shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than Holdings) will succeed to, and be substituted for, Holdings under this Indenture and the Notes, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer transaction and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, The Successor Issuer shall be the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will successor to Globalstar and shall succeed to, and be substituted for, such and may exercise every right and power of, Globalstar under this Indenture, and Globalstar (other than in the case of a lease) shall be released from the obligation to pay the principal of and interest and Liquidated Damages (if any) on the Securities.
(b) Globalstar shall not permit any Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or to consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidateor convey, dissolve, transfer or sell, assign, transfer, lease, convey in one transaction or otherwise dispose a series of transactions, all or substantially all of its properties assets to any Person unless: (i) the resulting, surviving or assets transferee Person (collectively, if not such Subsidiary) shall be a “Transfer”) to Holdings Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or any Subsidiary Guarantor.under the laws of the
Appears in 1 contract
When Issuers May Merge or Transfer Assets. (a) Holdings may not, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless:
(i) Holdings is the surviving person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, partnership or limited liability company or similar entity 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 Holdco”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) no Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Restricted Subsidiary at the time of such transaction), either
(1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio for the Successor Holdco and its Restricted Subsidiaries would be no less greater than such ratio for Holdings and its Restricted Subsidiaries immediately prior to such transaction;
(v) if Holdings is not the Successor Holdco, 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 Notes; and
(vi) the Successor Holdco shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than Holdings) will succeed to, and be substituted for, Holdings under this Indenture and the Notes, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, partnership or limited liability company or similar entitycompany, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof of the United States or may convert into a limited liability company, corporation, partnership, limited liability company partnership or similar entityentity organized or existing under the laws of 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 such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary Guarantor.
Appears in 1 contract
Samples: Indenture (MBOW Four Star, L.L.C.)
When Issuers May Merge or Transfer Assets. (a) Holdings may notEach Issuer shall not consolidate with, directly or indirectly, consolidate, amalgamate or merge with or into any other person or wind up convey, transfer or convert into (whether or not Holdings is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of lease all or substantially all of its properties or and assets in one or more related transactions, to any Person Person, unless:
(ia) Holdings is either (1) such Issuer shall be the surviving continuing corporation or (2) the person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdingssuch Issuer) formed by such consolidation or to into which such saleIssuer is merged or the person which acquires by conveyance, assignment, transfer, lease, conveyance transfer or other disposition will have been made is a corporation, partnership, limited liability company lease all or similar entity substantially all of the properties and assets of such Issuer (i) shall be organized or and validly existing under the laws of the United States, States or any state thereof, State thereof or the District of ColumbiaColumbia and (ii) shall expressly assume, or any territory thereof (Holdings or such Personby an indenture supplemental hereto, as executed and delivered to the case may beTrustee, being herein called in form satisfactory to the “Successor Holdco”); provided that in the case where the surviving Person is not a corporationTrustee, a co-obligor all of the obligations of such Issuer under the Notes is a corporationand this Indenture;
(iib) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted 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;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Restricted Subsidiary at the time of such transaction), either
(1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio would be no less than such ratio immediately prior to such transaction;
(v) if Holdings is not the Successor Holdco, 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 Notes; and
(vic) the Successor Holdco such Issuer shall have delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation conveyance, transfer or transfer and lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indentures (if any) indenture, comply with this IndentureArticle 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 (other than to such Issuer or another Subsidiary), which, if such assets were owned by such Issuer, would constitute all or substantially all of the properties and assets of such Issuer, shall be deemed to be the transfer of all or substantially all of the properties and assets of such Issuer. The Successor Holdco (if other than Holdings) will successor person formed by such consolidation or into which an Issuer is merged or the successor person to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, Holdings and may exercise every right and power of, such Issuer under this Indenture with the same effect as if such successor had been named as such Issuer herein; and thereafter, except in the Notescase of a lease and obligations an Issuer may have under a supplemental indenture pursuant to Section 10.11, and in such event Holdings will automatically Issuer shall be released and discharged from its all obligations and covenants under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Subject to Section 5.019.06, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United Statessuch Issuer, the District of Columbia or any territory of Trustee and the United States or may convert successor person shall enter into a corporation, partnership, limited liability company or similar entity, so long as supplemental indenture to evidence the amount of Indebtedness of Holdings succession 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case substitution of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (successor person and such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) discharge and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations release of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary GuarantorIssuer.
Appears in 1 contract
When Issuers May Merge or Transfer Assets. (a) Holdings may QD LLC shall not, directly or indirectly, consolidate, amalgamate or merge with or into or wind up or convert into (whether or not Holdings QD LLC 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) Holdings QD LLC is the surviving person or the Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than HoldingsQD LLC) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, partnership or limited liability company or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (Holdings QD LLC or such Person, as the case may be, being herein called the “Successor Holdco”); provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation;
(ii) the Successor Holdco (if other than HoldingsQD LLC) expressly assumes all the obligations of Holdings QD LLC under this Indenture and its Guarantee pursuant to supplemental indenturesindentures 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 Holdco, Holdco or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) no Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Holdco, Holdco or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, Holdco or such Restricted Subsidiary at the time of such transaction), either
(1A) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(2B) the Fixed Charge Coverage Ratio for the Successor Holdco and its Restricted Subsidiaries would be no less greater than such ratio for QD LLC and its Restricted Subsidiaries immediately prior to such transaction;
(v) if Holdings QD LLC is not the Successor Holdco, each Subsidiary Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Subsidiary obligations in respect of its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(vi) the Successor Holdco shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than HoldingsQD LLC) will succeed to, and be substituted for, Holdings QD LLC under this Indenture and the Notes, and in such event Holdings QD LLC will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings QD LLC or to a another Restricted Subsidiary, and (b) Holdings QD LLC may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings QD LLC in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, partnership or limited liability company or similar entitycompany, so long as the amount of Indebtedness of Holdings QD LLC and the its 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 Holdings QD LLC and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i)11.04, no none of QD Capital or any Restricted Subsidiary that is a Guarantor shall, and Holdings QD LLC shall not permit any of QD Capital or any Restricted Subsidiary that is a Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Issuer or Restricted Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) QD Capital or such Subsidiary Guarantor Restricted Subsidiary, as applicable, is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than QD Capital or such Subsidiary GuarantorRestricted Subsidiary) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation (in the case of QD Capital) or a corporation, partnership or limited liability company (in the case of such Subsidiary GuarantorRestricted Subsidiary) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof thereof, (QD Capital or such Restricted Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary GuarantorSuccessor”) and the Successor Subsidiary Guarantor (if other than QD Capital or such Subsidiary GuarantorRestricted Subsidiary) expressly assumes all the obligations of QD Capital or such Restricted Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, pursuant to a supplemental indentureindenture or other documents or instruments in form reasonably satisfactory to the Trustee, or (Bb) such sale or disposition or consolidation, amalgamation or merger is not in violation of Section 4.064.06 and does not constitute a sale, transfer, lease, conveyance or other disposition of all or substantially all of the assets of QD LLC; and
(ii) the Successor Subsidiary Guarantor (if other than such Subsidiary GuarantorIssuer or Restricted Subsidiary) shall have delivered or caused to be 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 supplemental indenture (if any) comply with this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than QD Capital or such Subsidiary GuarantorRestricted Subsidiary) will succeed to, and be substituted for, QD Capital or such Restricted Subsidiary Guarantor under this the Indenture and the Notes or the Subsidiary Guarantee, as applicable, and QD Capital or such Restricted Subsidiary Guarantor will automatically be released and discharged from its obligations under this the Indenture and the Notes or its Subsidiary Guarantee, as applicable. Notwithstanding the foregoing, (1) QD Capital or a Restricted Subsidiary that is a Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating QD Capital or such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, of the United States so long as the amount of Indebtedness of such Issuer or such Restricted Subsidiary Guarantor is not increased thereby and (2) a Restricted Subsidiary that is a Guarantor may merge, amalgamate or consolidate with Holdings QD LLC or another a Restricted Subsidiary that is a Guarantor. In addition, notwithstanding the foregoing, a Restricted Subsidiary that is a Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings QD LLC or any Restricted Subsidiary that is a Guarantor. QDI will not consolidate, amalgamate or merge with or into or wind up into (whether or not QDI is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(1) either QDI or QD LLC (provided that if QD LLC is to be the surviving Person, then such transaction shall comply with Section 5.01(a) or 5.01(b)) is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than QDI) 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 (QDI or such Person, as the case may be, being herein called the “Successor Parent Guarantor”) and the Successor Parent Guarantor (if other than QDI) expressly assumes all the obligations of QDI under the Indenture and QDI’s Guarantee pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; and
(2) the Successor Parent Guarantor (if other than QDI) 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 Parent Guarantor (if other than QDI) will succeed to, and be substituted for, QDI under this Indenture and QDI’s Guarantee, and QDI will automatically be released and discharged from its obligations under this Indenture and such Guarantee.
Appears in 1 contract
Samples: Indenture (Quality Distribution Inc)
When Issuers May Merge or Transfer Assets. (a) Holdings Neither Globalstar nor Globalstar Capital may not, directly or indirectly, consolidate, amalgamate consolidate with or merge with or into or wind up or convert into (whether or not Holdings is the surviving Person)into, or sellconvey, assign, transfer, transfer or lease, convey in one transaction or otherwise dispose a series of transactions, all or substantially all of its properties assets to any Person; provided, however, that Globalstar may consolidate with or assets merge with or into, or convey, transfer or lease, in one transaction or more related a series of transactions, all or substantially all its assets to any Person unlessPerson, if:
(i) Holdings is the resulting, surviving person or transferee Person (the "Successor Issuer") shall be a Person formed by or surviving any such consolidation, amalgamation, merger, winding up or conversion (if other than Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited liability company or similar entity organized or and existing under the laws of the United StatesStates of America, any state thereof, State thereof or the District of ColumbiaColumbia and the Successor Issuer (if not Globalstar) shall expressly assume, or any territory thereof (Holdings or such Personby an indenture supplemental hereto, as executed and delivered to the case may beTrustee, being herein called in form satisfactory to the “Successor Holdco”); provided that in Trustee, all the case where obligations of Globalstar under the surviving Person is not a corporation, a co-obligor of the Notes is a corporationSecurities and this Indenture;
(ii) the Successor Holdco (if other than Holdings) expressly assumes all the obligations of Holdings under this Indenture pursuant to supplemental indentures;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness Debt which becomes an obligation of the Successor Holdco, Issuer or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdco, or such Issuer or such Restricted Subsidiary at the time of such transaction) ), no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the Successor Issuer would be able to Incur an additional $1.00 of Debt pursuant to Section 4.03(a); 58 51
(iv) immediately after giving pro forma effect to such transaction, as if the Successor Issuer shall have Consolidated Net Worth in an amount that is not less than the Consolidated Net Worth of Globalstar immediately prior to such transaction; and
(v) Globalstar shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such transaction had occurred at and such supplemental indenture (if any) comply with this Indenture. The Successor Issuer shall be the beginning successor to Globalstar and shall succeed to, and be substituted for, and may exercise every right and power of, Globalstar under this Indenture, and Globalstar (other than in the case of a lease) shall be released from the obligation to pay the principal of and interest and Liquidated Damages (if any) on the Securities.
(b) Globalstar 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) the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the applicable four-quarter period 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 guaranty agreement in a form acceptable to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guaranty; (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 Successor Holdcoresulting, surviving or any Restricted Subsidiary transferee Person as a result of such transaction as having been Incurred issued by the Successor Holdco, or such Restricted Subsidiary Person at the time of such transaction), either
(1) the Successor Holdco would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.03(a); or
(2) the Fixed Charge Coverage Ratio would be no less than such ratio immediately prior to such transaction;
(v) if Holdings is not the Successor Holdco, each Subsidiary Guarantor, unless it is the other party to the transactions described above, Default shall have by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Person’s obligations under this Indenture occurred and the Notesbe continuing; and
and (viiii) the Successor Holdco shall have delivered Globalstar delivers to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indentures (if any) comply with this Indenture. The Successor Holdco (if other than Holdings) will succeed to, and be substituted for, Holdings under this Indenture and the Notes, and in such event Holdings will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv) of this Section 5.01, (a) Holdings or any Restricted Subsidiary may merge, consolidate or amalgamate with or transfer all or part of its properties and assets to Holdings or to a Restricted Subsidiary, and (b) Holdings may merge, consolidate or amalgamate with an Affiliate incorporated solely for the purpose of reincorporating Holdings in another state of the United States, the District of Columbia or any territory of the United States or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of Holdings 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 Holdings and the Restricted Subsidiaries.
(b) Subject to the provisions of Section 11.04 and Section 12.02(b)(i), no Subsidiary Guarantor shall, and Holdings shall not permit any Subsidiary Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(i) either (A) such Subsidiary Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a company, corporation, partnership or limited liability company (in the case of such Subsidiary Guarantor) or similar entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Subsidiary Guarantor”) and the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) expressly assumes all the obligations of such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, 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 Subsidiary 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, amalgamation, merger or transfer and such supplemental indenture (guaranty agreement, if any) comply , complies with this Indenture. Except as otherwise provided in this Indenture, the Successor Subsidiary Guarantor (if other than such Subsidiary Guarantor) will succeed to, and be substituted for, such Subsidiary Guarantor under this Indenture and the Notes or the Subsidiary Guarantee, as applicable, and such Subsidiary Guarantor will automatically be released and discharged from its obligations under this Indenture and its Subsidiary Guarantee. Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated solely for the purpose of reincorporating such Subsidiary Guarantor in another state of the United States, the District of Columbia or any territory thereof or may convert into a corporation, partnership, limited liability company or similar entity, so long as the amount of Indebtedness of such Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may merge, amalgamate or consolidate with Holdings or another Subsidiary Guarantor. In addition, notwithstanding the foregoing, a Subsidiary Guarantor may consolidate, amalgamate or merge with or into or wind up into, liquidate, dissolve, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (collectively, a “Transfer”) to Holdings or any Subsidiary Guarantor.59 52
Appears in 1 contract
Samples: Indenture (Globalstar Capital Corp)
